Citation Nr: 19158564
Decision Date: 07/30/19	Archive Date: 07/29/19

DOCKET NO. 05-33 660
DATE: 	July 30, 2019

REMANDED

Entitlement to compensation under 38 U.S.C. § 1151 for residual disability from a T12 fracture, based upon pre-surgical and post-surgical treatment at a Department of Veterans Affairs (VA) facility from December 2001 to January 2003 and from January 2003 to February 2003 is remanded.

REASONS FOR REMAND

The Veteran had active service from January 1971 until April 1972.

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a March 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.

In October 2016, the Board denied the compensation claim under 38 U.S.C. § 1151 for residual disability from a T12 fracture.  The Veteran appealed this determination to the United States Court of Appeals for Veterans’ Claims (Court).  Before the Court issued a decision, the parties filed a joint motion for partial remand (joint motion) to vacate the October 2016 Board decision denying the claim for compensation under 38 U.S.C. § 1151 for residual disability from a T12 fracture and remand this issue to the Board.  In November 2018, the Court granted the joint motion, and returned this issue to the Board.  

Entitlement to compensation under 38 U.S.C. § 1151 for residual disability from a T12 fracture, based upon pre-surgical and post-surgical treatment at a Department of Veterans Affairs (VA) facility from December 2001 to January 2003 and from January 2003 to February 2003 is remanded.

The November 2018 joint motion found that additional development was needed to fulfill VA’s duty to assist.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  In June 2015, the Veteran asserted that X-rays and clinical records following his January 2003 surgery were not included in the claims file and unavailable for his review.  (See June 2015 Veteran statement, p.1).  He contends these images would confirm early hardware failure for his spine and support his contention that February 2003 falls while in VA care caused additional disability.  See June 2015 Veteran statement, p. 4.  Specifically, the missing images are from the March 2003 X-ray of the lumbosacral and thoracic spine and July 2003 CT scan of the thoracic spine.  In order to comply with the November 2018 joint motion, the agency of original jurisdiction must furnish the Veteran with all of the underlying imaging reports and all clinical reports associated with all of the imaging studies taken in March 2003 and July 2003 for the spine as well as any other VA imaging studies for the spine taken in 2003.    

The matter is REMANDED for the following action:

(Continued on the next page)

 

1.  Locate and furnish to the Veteran a copy of all 2003 VA X-ray, CT scan and similar imaging studies for the spine, to include both the actual spine images and associated clinical reports.  Provide the Veteran a reasonable opportunity to respond.

 

Jonathan Hager

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	C. D. Simpson, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.