Citation Nr: 1756655 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 05-41 042 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2005 rating decision in which the RO, inter alia, declined to reopen the Veteran's previously denied claim for service connection for a back disability. In November 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in December 2005, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. In November 2006, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is also of record. In September 2009, the Board, inter alia, reopened the claim for service connection for a back disability claim, and then remanded the service connection claim, on the merits, to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further evidentiary development. After accomplishing further action, the AMC denied the claim (as reflected in a November 2010 supplemental SOC (SSOC)) and returned this matter to the Board for further consideration. In February 2011, the Board, inter alia, denied the claim. The Veteran appealed the Board's February 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In December 2011, the Court granted a Joint Motion for Partial Remand filed by representatives for both parties, vacating that portion of the decision that denied entitlement to service connection for a back disability, and remanding that claim to the Board for further proceedings consistent with the Joint Motion for Partial Remand. In August 2012, the Board, in turn, remanded the service connection claim for a back disability to the RO, via the AMC, for further evidentiary development consistent with the Joint Motion for Partial Remand. In April 2013, November 2013, and February 2016 the Board determined that there had not been substantial compliance with the directives of each prior remand, and again remanded the back claim for evidentiary development. After accomplishing further action on each occasion, the agency of original jurisdiction (AOJ) continued to deny the claim (as reflected in SSOCs dated in June 2013, January 2015, September 2015, and March 2017). In August 2017, the Board, again, remanded the service connection claim on appeal to the RO, via the AMC in Washington, DC, for additional development of the evidence. After accomplishing further action, the AMC continued to deny the service connection claim on appeal (as reflected in an October 2017 SSOC) and returned that matter to the Board for further consideration. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. For reasons expressed below, the claim on appeal is again, being remanded to the AOJ. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further AOJ action on the claim for service connection for a low back disability is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the Veteran claims that his low back disability is due to his military service. Specifically, he asserts that he injured his back in service when a Howitzer gun slipped and he grabbed it so it would not crush the legs of fellow service members. See November 2006 Board hearing transcript. He indicated that he went to sickbay and the doctors sent him back to his barracks for bed rest. Additionally, the Veteran has reported that he has experienced back pain in and since service. The Veteran's service treatment records (STRs) document his complaints of back pain. See STRs dated in February 1966 and April 1968. Notably, in the April 1968 STR, the Veteran reported recurrent back pain. Post service, the Veteran submitted two buddy statements from individuals who each attest to awareness of the Veteran injuring his back in service. In a November 1976 letter, R.L. stated that he had seen the Veteran at a field dispensary at Camp Shelby in August 1968 after injuring his back while performing duty on his Howitzer. Similarly, R. P. reported that he was stationed with the Veteran in Camp Shelby and that, in August 1968, the Veteran was prescribed bed rest following a back injury received while performing his duties as an assistant gunner. In a January 1976 private treatment record, Dr. Q., noted that the Veteran reported that he had been experiencing chronic low back pain since his active duty service. Furthermore, Dr. Q. indicated that he first treated the Veteran in May 1974, due to back pain caused while pushing a boat. Dr. Q. diagnosed acute lumbosacral sprain with muscle spasm. As indicated above, the Board has remanded the Veteran's claim several times, in an effort to obtain an adequate opinion that addresses the etiology of the Veteran's back disability based on a full consideration of the evidence of record. Pursuant to the most recent, August 2017 remand, in October 2017, a VA physician opined that the Veteran's back disability is less likely related to his military service. The VA physician's rationale for the negative nexus opinion was largely based on the absence of back treatment noted in the Veteran's STRs and the absence of back diagnosis following service. However, as indicated above, the Veteran's STRs show that he complained of back pain during service. Furthermore, although the October 2017 VA physician discredited the two buddy statements of record indicating that the Veteran injured his back during service because there was no "objective documented evidence in the service medical record," such is not required, particularly, where, as here, there is nothing to directly contradict the Veteran's and his buddy's competent assertions in this regard. Moreover, with respect to the January 1976 diagnosis of acute lumbosacral sprain with muscle spasm, the VA physician indicated that the Veteran's January 1976 diagnosis was not caused by service because the January 1976 record references a back injury following service. However, in so concluding, the VA physician ignored the fact that during the January 1976 treatment visit, the Veteran reported that he had been experiencing chronic low back pain since his active duty service. As such, unfortunately, the specific deficiency pointed out by the parties to the Joint Motion for Partial Remand still has not been remedied, necessitating yet another remand to obtain an opinion based on specific consideration of the lay assertions of the in-service back injury and continuity of back symptoms since service. See Stegall, 11 Vet. App. at 271; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination to obtain a medical opinion, one that is adequate for purposes of the determination being made must be provided or obtained). Prior to accomplishing action consistent with the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file (in VBMS and Virtual VA) all outstanding, pertinent records, to include records of VA evaluation and/or treatment of the Veteran since August 2017. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (particularly, as regards private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103 (b)(1) (2012); but see 38 U.S.C. § 5103 (b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran since August 2017. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available record and/or responses from each contacted entity are associated with the claims file, and arrange to obtain an addendum opinion from another physician-preferably, one who has not previously examined the Veteran or provided medical opinion in connection with this claim-based on claims file review (if possible) Only arrange for the Veteran to undergo VA examination, by an appropriate physician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion must include discussion of the Veteran's documented medical history and assertions. The physician must review the claims file, with particular emphasis on the following lay evidence: (a) R.L.'s November 1976 letter stating that he had seen the Veteran at a field dispensary at Camp Shelby in August 1968 after injuring his back while performing duty on his Howitzer; (b) R. P.'s November 1976 letter stating that he was stationed with the Veteran in Camp Shelby and that, in August 1968, the Veteran was prescribed bed rest following a back injury received while performing his duties as an assistant gunner; and (c) the Veteran's statements that he injured his back during service and that he had/has had continuing back pain during and since service. Based on specific consideration of the above-cited evidence, and presuming, for this purpose, the truth of the competent lay assertions as to the occurrence of the in-service injury and continuity of back symptoms since service, with respect to each diagnosed back disability, physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service, or is otherwise medically related to in-service injury or disease. In addressing the above, the physician must consider and discuss all relevant medical and other objective evidence and all ay assertions-to include the Veteran's assertions as to the occurrence of in-service events; and as to the nature, onset, and continuity of psychiatric symptoms. Notably, the lack of medical treatment for or diagnosis of a back disability during service or shortly thereafter should not, alone, form the sole basis for a negative opinion. In this regard, the psychiatrist or psychologist is advised that the Veteran is competent to report her symptoms and history, and her assertions in this regard should be considering in formulating the requested opinions. All examination findings/testing results (id any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid another remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall, supra. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal in light of all pertinent evidence (to include all that added to the VBMS and/or Virtual VA file(s) since the last adjudication), and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).