Citation Nr: 0710813 Decision Date: 04/12/07 Archive Date: 04/25/07 DOCKET NO. 03-07 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for claimed residuals of a spinal injury. 2. Entitlement to service connection for claimed residuals of a head injury. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The veteran served on active military duty from October 1956 to May 1958. He also had service in the US Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The claim has been remanded twice, the first remand occurring in March 2004 and the second remand happening I April 2005. The claim has since been returned to the Board for review. The issue of entitlement to service connection for the residuals of a head injury is addressed in the REMAND portion of the decision below and that issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The VA has fulfilled its notice and duty to assist to the appellant by obtaining and fully developing all relevant evidence necessary for the equitable disposition of the issue addressed in this decision. 2. The veteran's service medical records were destroyed in the 1971 fire at the National Personnel Records Center (NPRC). 3. The veteran claims to have injured his back while in the service. In support of his assertions, he has provided "buddy" statements. 4. The veteran now suffers from disabilities of the back. 5. A VA medical doctor has etiologically linked the veteran's current back disabilities with his military service despite the lack of corroborating service medical records. CONCLUSION OF LAW Resolving all reasonable doubt in the appellant's favor, the veteran's spinal injury residuals were caused by or the result of the veteran's military service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The Board finds that the Agency of Original Jurisdiction (AOJ) has satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with this issue (involving the back) given the favorable nature of the Board's decision with regard to the issue of entitlement to service connection for the residuals of an injury to the back. Under 38 U.S.C.A. § 1110 (West 2002) and 38 C.F.R. § 3.303(b) (2006), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period), but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage v Gober, 10 Vet. App. 488, 495-98 (1997). To grant service connection, it is required that the evidence shows the existence of a current disability, an in-service disease or injury, and a link between the disability and the in-service disease or injury. Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit, which has stated that ". . . a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In addition, disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (2006). The United States Court of Appeals for Veterans Claims, hereinafter the Court, has held that when aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service-connected. Allen v. Brown, 7 Vet. App. 439, 446 (1995). The Court has further held that ". . . where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (The Court held that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). The Court has also held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The veteran has claimed that while he was in service, but on leave, he injured his back after being involved in a tractor accident in March 1957. The veteran contends that after being injured, he received treatment at Shands Hospital in New Albany, Mississippi, and was subsequently returned to duty in the US Army. To support his assertions, he has provided "buddy" statements attesting to the assertion that the veteran was involved in a tractor accident. As a part of processing the veteran's claim, the VA attempted to obtain the veteran's service medical records. Those records were sought because it was believed that they could either confirm or refute the veteran's assertions involving the accident and subsequent treatment. The VA contacted the National Personnel Records Center (NPRC), which, in turn, informed the VA that the veteran's service medical records were unavailable. NPRC has reported that the veteran's medical records were not on file and were possibly destroyed in a fire at that facility. In cases where the veteran's service medical records are unavailable (or, as in this case, probably destroyed) through no fault of the claimant, there is a "heightened duty" to assist the veteran in the development of the case. 38 U.S.C.A. § 5107(a) (West 2002 & Supp. 2005). See generally McCormick v. Gober, 14 Vet. App. 39 (2000); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The heightened duty to assist includes the obligation to search for alternate methods of proving service connection. VA regulations do not require that service connection be established by service medical records, but may be established by cognizable evidence from other medical and lay sources. Smith v. Derwinski, 2 Vet. App. 147, 148 (1992). The Court has further held that the "duty to assist" the appellant includes advising him that, even though service records were not available, alternate proof to support the claim will be considered. Lanyo v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, the VA's Adjudication Procedure Manual provides that alternate sources of evidence may be utilized in a claim where there are missing records. Such sources include statements from service medical personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals and clinics, evidence from private physicians who may have treated, especially soon after separation, and letters written during service. VA Adjudication Procedure Manual, Manual M21-1, Part III, Paragraph 4.25(c) (July 12, 1995). In this instance, the veteran has provided "buddy" statements which have been submitted as confirmation of an accident that led to a spinal disability(ies). As a result of the Board's Remands of March 2004 and April 2005, a VA doctor was asked to provide an opinion as to whether the veteran was now suffering from disabilities of the spine that could be etiologically linked with the veteran's military service. A VA doctor provided an assessment of the veteran in October 2004. On that assessment, the doctor diagnosed the veteran as suffering from cervical spondylosis with left upper extremity radiculopathy and lumbar spondylosis. A second doctor provided a qualifying opinion in May 2005 when he stated that the veteran's "current symptomatology is at least as likely as not related to his military service." That same doctor added, in an addendum dated July 2005, that the veteran's cervical spondylosis with left upper extremity radiculopathy and anterior cervical discectomy with fusion at C5-6 were related to the veteran's military service. A contrary opinion was not provided or obtained. As such, to put it in perspective, a VA doctor has provided an opinion that corroborates, without the benefit of the veteran's service medical records, the veteran's claim. When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2005); see also 38 C.F.R. § 3.102 (2006). In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." The Court pointed out in Gilbert that under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the veteran prevails. In view of the foregoing, the Board finds that the evidence is, at least, in equipoise. Because the evidence is in equipoise, and since the appellant is supposed to be afforded the benefit-of-the- doubt (especially in cases involving lost or destroyed service medical records), the Board concludes that the veteran did indeed suffer from an injury to the spine while he was in service and that he now suffers from disabilities that have been etiologically linked to that accident. Therefore, service connection is granted. ORDER Entitlement to service connection for the residuals of an injury to the veteran's spine is granted. REMAND The other issue on appeal involves entitlement to service connection for the residuals of a head injury. The record reflects that in the March 2004 and April 2005 Board Remands, the Board specifically asked for additional medical information, including an opinion, concerning the veteran's claimed head injury. A review of documents received after the March 2004 Remand indicates that a definitive diagnosis was not given. Because such a result was not achieved, the April 2005 Remand specifically asked that a VA medical provider scribe an opinion that specifically addressed the contentions raised by the veteran. Upon reviewing the medical documents obtained after the April 2005 Remand, the Board is of the opinion that the requested information was not obtained. In other words, upon reviewing the claims folder, it is the Board's opinion that the AMC did not comply with the remand instructions. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders, and that the Secretary of Veterans Affairs has a concomitant duty to ensure compliance with the terms of the remand. As the medical documents obtained did not specifically attain the information needed by the Board, the claim must be returned to the RO for the requested information. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the AMC for the following development: 1. The veteran should once again be scheduled for another examination for the purpose of determining whether the veteran now suffers from a disability or disease of the head/brain that can be etiologically linked to an incident that occurred while the veteran was in service. The examination results should be phrased in the terms "more than likely", "less than likely", or "more likely than not". It is recommended that such an examination be accomplished by a neurologist if one is available to examine the veteran. The claims folder and this Remand must be made available to the examiner for review prior to the examination. The results proffered by the examiner must reference the complete claims folders and any inconsistent past diagnoses given. If these matters cannot be medically determined without resort to mere conjuncture, this should be commented on by the examiner in the report. 2. Following completion of the foregoing, the AMC must review the examination report and ensure that the above requested development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the AMC should re- adjudicate the issue on appeal. If the benefits sought on appeal remain denied, the appellant and the accredited representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The purpose of the examination requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2006) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant 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.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs