Citation Nr: 1808630 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-20 900 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a back disability. ATTORNEY FOR THE BOARD C. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1995 to June 1998. Upon discharge from active duty, he was released to inactive duty of the U.S. Naval Reserves Personnel (other than fleet reserves). This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In February 2011, the Board denied service connection for chronic back strain. The Veteran thereafter appealed the February 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In March 2012, the parties filed a Joint Motion for Remand (Joint Motion). By Order dated March 5, 2012, the Court granted the Joint Motion and the Board's February 2011 decision was vacated and remanded for action consistent with the terms of the Joint Motion. In September 2012, the Board remanded this case for additional development including action to comply with the directives of the March 2012 Joint Motion. In October 2017, the Board again remanded this case for additional development. The case is once again before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND For the reasons discussed below, there has not been substantial compliance with the October 2017 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter on appeal must be remanded to ensure that the Veteran is accorded full compliance with the statutory duty to assist. The Veteran is seeking service connection for a back disability resulting from an alleged back injury incurred while on a U.S. Navy Destroyer in 1997 or 1998 during active duty service when a fellow shipmate fell down on him in a stairwell knocking the Veteran backwards and down. The Veteran reports that he has felt intermittent back pain ever since. He also asserts that the lifting of heavy ammunition in 1997 and 1998 while on active duty contributed to his chronic back disability. The Veteran's June 1998 separation examination report documents the Veteran's subjective complaints of daily back pain as of that time. The Veteran currently has multiple diagnosed back disabilities. See November 2015 VA examination report. The Board's September 2012 remand included discussion of the fact that "the only post-service records of private treatment and evaluation of the Veteran's back pain currently of record are dated in November 2002, from February to May 2003, and in February 2008, all of which pertain to evaluation and treatment of his 2002 and 2003 work-related back injuries. During the processing of the September 2012 Board remand, the Veteran was afforded a new VA examination in November 2015 to address medical questions central to this claim. The November 2015 VA examination report with medical opinion includes a list of items noted by the examiner as providing significant information in this case. Included in that list, the VA examiner noted a significant October 2001 medical report: "10/19/2001 Progress Note, 'CC: back pain', '...mild back pain stemming from an injury while in the service in 1996 (ground level fall down flight of stairs) . . . exacerbated by bending forward, lifting objects, cold, and rain." The referenced October 2001 medical report partially quoted by the VA examiner appears to be pertinent evidence in this case concerning the state of the health of the Veteran's back following service and prior to his post-service back injuries. The referenced October 2001 medical report is evidence that does not appear to have been previously available for Board review in this matter. At this time, the Board is unable to locate the referenced October 2001 medical report in the claims file, and the Board is thus unable to review its complete contents and the contents of any accompanying medical records from this period between the Veteran's June 1998 separation from service and his 2002 post-service back injury. In October 2017, the Board remanded the case and directed the AOJ, in part, to take appropriate action to ensure that the Veteran's claims file include all pertinent treatment records, including the October 19, 2001 "Progress Note" concerning "back pain" referenced in the November 2015 VA examination report, which the Board has considered significant in this matter as it concerns the Veteran's state of health following service and prior to his post-service back injuries. The Board further directed that if the referenced October 2001 medical report was not contained in CPRS (Computerized Patient Records System), then the AOJ should take appropriate action to attempt to identify the source and location of this referenced evidence so that it (and any other pertinent records from the same source) may be made available for the Board's review in this matter. Finally, the Board directed that "[i]f any sought records are unavailable, the reason for their unavailability must be explained for the record." See October 2017 Board remand. In its SSOC, the AOJ found that per Board directives all VA outpatient treatment records had been associated with the claims file. The AOJ noted that it had issued the Veteran a medical records release form to complete so that the AOJ could retrieve any outstanding private treatment records not yet of record. No response was received from the Veteran. However, because the AOJ has neither made the October 19, 2001 "Progress Note" concerning back pain available for review nor provided any reason for its unavailability, the Board finds that the AOJ has not substantially complied with the Board's October 2017 remand directives. See Stegall, supra. Additionally, the opinion provided by the VA examiner in the November 2015 VA examination report is inadequate. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examiner noted that the Veteran's back condition was less likely than not incurred in or caused by the claimed in-service back injury because there was no current documented STR medical evidence of a stairwell fall and/or back injury from on or about the date of the alleged incident in the mid to late 1990s. The VA examiner further indicated that the Veteran's subjective back complaints in his separation examination report were commenting on his self-endorsement of his back symptoms. The Board initially notes that the lack of any evidence showing the Veteran incurred a back injury or fall during service is not fatal to his claim for service connection. The laws and regulations do not strictly require in-service complaint of, or treatment for, a back condition in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Dalton v. Nicholson, 21 Vet. App. 23, 41 (2007) (holding that the Board may not rely on the absence of an official record to find the lay evidence not credible because that would be inconsistent with the purpose of 38 U.S.C. § 1154(b)). Instead, the Court of Appeals for Veterans Claims has held where there is no evidence of the Veteran's claimed disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the Veteran's in-service [event] and his current disability, it would follow that the Veteran incurred an injury in service . . . ." Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)). Therefore, the critical question is whether the Veteran has a current back disability which is causally related to service. The VA examiner also provides a conclusory rationale and an incomplete analysis by basing his opinion on a lack of evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that a new VA medical examination and opinion is necessary to determine if the Veteran currently has a back disability and if so, the nature and etiology of any diagnosed disability is appropriate in this case. 38 C.F.R. § 3.159(c)(4)(2017). The Veteran specifically reports that during service while on a Destroyer in rough seas an individual fell down on him in a stairwell knocking the Veteran backwards and down. The Veteran reports that he suffered an injury to his back when he fell, which resulted in having to be bed rested. This the Board finds to be not only competent and credible but highly probative because the Veteran was an Infantry, Gun Crews and Seamanship Specialist who served on a Destroyer as evidenced by his DD 214, and serving on a Destroyer in the ocean with changing weather conditions would expose an individual to certain dangers on a ship including the risk of potential slips and falls. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Any outstanding VA treatment records dated since January 2018 should be associated with the claims file. 2. After the above development has been completed and all records have been associated with the claims file, the Veteran must be afforded a VA examination by an examiner who has not yet examined the Veteran with appropriate expertise to determine the nature and etiology of the Veteran's claimed back disability. Any and all studies, tests, and evaluations that are deemed necessary by the examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records and specifically the Veteran's tenured history of back complaints since service. The examination report should particularly give due consideration to the Veteran's lay statements regarding the circumstances surrounding a back injury incurred while serving on a U.S. Navy Destroyer during active duty service. The examiner should then: (a) Provide a specific diagnosis for any current back disability. (b) Provide an opinion as to whether it is at least as likely as not (i.e. a probability of 50 percent or greater) that any diagnosed back disability originated during, or is etiologically related to, active duty service. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. 3. After conducting any additional development deemed necessary, readjudicate the claim. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative, allow the appropriate time for response, and thereafter return the case to the Board, if in order. 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). _________________________________________________ Michael J. Skaltsounis 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).