Citation Nr: 1752784 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-25 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2016. A transcript of that proceeding is associated with the record. In February 2017, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The Board notes that additional VA medical records were associated with the claims file since the July 2017 supplemental statement of the case (SSOC). However, to the extent that these records may be relevant, the Agency of Original Jurisdiction (AOJ) will have the opportunity to review these records on remand. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran was afforded a VA examination in April 2017 during which the examiner diagnosed him with degenerative osteoarthritis of the lumbar spine. The examiner opined that the claimed condition was less likely than not incurred in or caused by service. However, the examiner's opinion was not fully responsive to the Board's February 2017 remand directives. Moreover, in rendering his opinion, the examiner stated that treatment or complaints relating to the Veteran's back disorder were not shown until he filed his initial claim for service connection in September 1995. However, the Board notes that a March 1994 VA x-ray report indicated that the Veteran had a clinical history of lower back pain. As such, it appears that the opinion was based on an inaccurate or incomplete factual premise. Therefore, a remand is required to obtain an additional VA medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, in February 2017, the Board directed the AOJ to contact the appropriate facilities to request any inpatient or clinical records from the Fort Clayton Hospital dated from March 1976 to June 1976 that pertained to treatment for back disorder. A March 2017 response to a Personnel Information Exchange System (PIES) request for such records indicated that a search could not be conducted based on the information furnished due to the fact that records for private contract were not located at code 13. However, there is no indication that the Appeals Management Center (AMC) made any further efforts to obtain records from the Fort Clayton Hospital or that the Veteran was provided proper notice of any unavailable records. Stegall v. West, 11 Vet. App. 268, 271(1998). The Board also notes that the Veteran submitted incomplete authorization forms for VA to obtain treatment records. See May 2017 authorization for release. On remand, the AOJ should afford the Veteran an additional opportunity to submit complete authorization forms to obtain any outstanding private medical records. Lastly, the Board notes that additional VA medical records have been associated with the claims file since the most recent supplemental statement of the case. Although the Veteran's substantive appeal was filed after February 2, 2013, these records were obtained by VA rather than the Veteran. Therefore, there is no automatic waiver of AOJ review. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his back disorder that are not already of record. A specific request should be made for authorization to obtain records from Dr. S.R., Dr. R., and Dr. G.S. (initials used to protect privacy) identified during the July 2016 Board hearing. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, to include any records from the VA Heartland Network dated from July 2017 to the present. 2. The AOJ should contact the appropriate facilities to request any inpatient or clinical records from the Fort Clayton Hospital dated from March 1976 to June 1976 that pertain to treatment for a back disorder. If any requested records are not available, the AOJ should clearly document the claims file to that effect and notify the Veteran of any inability to obtain the records, in accordance with 38 C.F.R. § 3.159(e). 3. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any current back disorder. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify all current back disorders. See, e.g., August 2016 private MRI report (scoliosis); April 2017 VA examination report (lumbar spine degenerative osteoarthritis). For each diagnosis identified, the examiner should indicate whether the disorder is a congenital defect or disease. To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.") (a) For each current back disorder that is a congenital defect, the examiner should state whether there is any evidence of superimposed disease or injury during the Veteran's active duty service from June 1973 to June 1976. (b) For each current back disorder that is a congenital disease, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's active duty service. If so, the examiner should state whether there was an increase in the severity of the disorder during the Veteran's active duty service and whether any increase was due to the natural progression of the disorder. (c) If the examiner determines that the back disorder is not a congenital defect and did not clearly and unmistakably preexist the Veteran's active duty service, he or she should state whether it is at least as likely as not (50 percent or greater probability) that the disorder manifested in or is otherwise related to active duty service. In rendering his or her opinion, the examiner should consider the following: 1) the Veteran's July 2016 testimony regarding his ongoing symptoms of back pain since service; 2) the January 1975 service treatment record that noted an impression of a muscular strain; 3) the August 1975 service treatment record that noted the Veteran pulled a muscle in his back; 4) the April 1976 service treatment record that noted an impression of a lower back strain; 5) the April 1976 separation examination that showed a normal clinical evaluation of the spine; 6) the VA x-ray findings of record (see, e.g., March 1994, January 1996, and March 2010 x-ray reports) 7) the September 2004 private neurosurgery consultation report that noted the Veteran injured his back in the military and that his symptoms were exacerbated in May 2004 by a motor vehicle accident; 8) the August 2016 private medical statement from Dr. S.R.; and 9) the March 1996, October 2005, and April 2017 VA examination reports. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 5. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claim should be reviewed by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).