Citation Nr: 0736796 Decision Date: 11/23/07 Archive Date: 12/06/07 DOCKET NO. 05-14 048A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for chronic lumbar syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Kelley, Associate Counsel INTRODUCTION The veteran served on active duty from September 1972 to September 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2007, the appellant testified before the undersigned Veterans Law Judge at a video conference hearing at the RO; a copy of the hearing transcript is associated with the record. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND This case must be remanded to comply with VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. In the present appeal, the veteran was provided with notice of the type of evidence necessary to establish an effective date and a disability rating, if service connection is granted on appeal. The duty to assist includes obtaining missing VA records including service medical records, obtaining Social Security Administration (SSA) records, and providing a VA medical examination or a medical opinion when necessary for an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). During the September 2007 video conference hearing, the veteran testified that he is receiving disability benefits from SSA. On remand, the VA should attempt to obtain SSA records. The veteran contends that his chronic lumbar syndrome was incurred during military service while assigned as a supply clerk to an U.S. Army motor pool in Germany. At the video conference hearing, the veteran testified that, while in Germany, he had climbed onto a tank to hand a spare part to another person when he slipped off the tank and fell onto his side. He did not pay attention to it at the time, but as he was feeling pain the next morning, he went to sick call where X-rays were taken and the veteran was treated with Tylenol and Ibuprofen. VA records of July 1998 indicate that VA Regional Office in Jackson, Mississippi had tried to transfer the veteran's claims file to the Montgomery RO. However, the July 1998 records report that the folder was missing, unavailable for transfer, and that the claims folder data had to be rebuilt. In March 2001 the Montgomery RO received correspondence from NPRC indicating that NPRC had sent the veteran's service medical records to the Montgomery RO in September 1993. In December 2003, the Montgomery RO noted that it had received the veteran's records in a permanent transfer from the Milwaukee VA Regional Office. The veteran' service medical records are lost or missing. The RO noted in a deferred rating decision of February 2004 that it had been advised by NPRC that the veteran's service medical records were sent to the Montgomery RO in 1993. The February 2004 document also indicated that the veteran's service medical records were not associated with his claim's file and that the veteran should be asked whether he had any of his service medical records, and if so to send a copy to the RO. In response to the Montgomery RO's inquiry, the veteran wrote a letter in February 2004 indicating that he had been stationed in Mainz, Germany from March 1973 to September 1975 while he was serving with A Company, 4th and 69th Armor when he hurt his back. The veteran indicated that he had had x- rays taken and received specialized treatment then at the Army Hospital in Frankfurt, Germany, and that the RO should obtain his service medical records from those sources, as the veteran himself had no service medical records to submit. In an August 2004 response to the veteran's inquiry, the NPRC wrote informing him that his service medical records had been loaned to the VA. The record is negative for further VA assistance in obtaining the veteran's service medical records. The facts establish that the NPRC sent the veteran's service medical records to the Montgomery RO in 1993, and at some point after that the claims file went missing and had to be rebuilt. When service medical records are lost or missing, VA has a heightened obligation to satisfy the duty to assist. Under such circumstances, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v.Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The RO, on remand, should continue to assist in obtaining the veteran's service medical and personnel records, or, if still unavailable, in developing alternate forms of this evidence. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court discussed the steps to be taken in determining whether a VA examination is necessary prior to final adjudication of a claim. According to McLendon, in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualified, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. §5103A(d)(2), 38 C.F.R. §3.159(c)(4)(i). The Court in McLendon observed that the third prong, which requires that an indication that the claimant's disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, competent evidence of a current disability or persistent or recurrent symptoms of a chronic lumbar syndrome disability exist in the veteran's VA examination of January 2001 in which the examiner diagnosed the veteran with "chronic lumbar syndrome with computed tomography (CT) scan and evidence of degenerative disc disease and mild bilateral facet hypertrophy." The veteran offers evidence that he injured his back in service, but as the VA has lost his service medical records, it is under heightened duty to assist the veteran in developing his claim. As the examiner gave no etiology for the veteran's chronic lumbar syndrome condition, there is insufficient medical evidence on file to make a decision on the claim and thus the Board finds that this case must also be remanded for a competent medical examination. To ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED for the following: 1. The VA should request copies of any decision(s) and accompanying medical records submitted in support of any claim by the appellant for disability benefits from the Social Security Administration (SSA). If records are unavailable, SSA should so indicate. 2. The RO should perform another search for the veteran's service medical and/or service personnel records which includes requesting them from the veteran and from the NRPC as well as from the veteran's former unit, A Company, 4th and 69th Armor, and its parent command, and from the Army Hospital in Frankfurt, Germany which treated him for his chronic lumbar syndrome. The request should specify the timeframe of September 1972 through September 1975, and should note that the appellant served with the unit in Germany during that timeframe. The veteran should be asked to obtain "buddy statements" from any individuals with whom he served who have personal knowledge of the veteran's claimed back accident and subsequent treatment for chronic lumbar syndrome while in service and post-service, including family members or others who have knowledge of the veteran's back injury and subsequent treatment. 3. After all attempts to obtain the veteran's service medical records have been exhausted, the AOJ should schedule the veteran for an orthopedic examination, by an appropriate specialist, to determine the nature and etiology of his chronic lumbar syndrome. The claims file, this remand, and treatment records must be made available to, and be reviewed by, the examiner in connection with the examination, and the report should so indicate. All indicated tests and studies, to include x-rays, should be conducted. The examiner should specifically note all disabilities of chronic lumbar syndrome, to include a medical opinion as to whether the veteran's chronic lumbar syndrome was incurred in or caused by his military service. The full and accurate relevant history of the veteran's chronic lumbar syndrome, any newly obtained service medical records, and relevant VA and private medical records and treatment records from November of 1997 should be reviewed by the examiner. From the results of the VA examination, the examiner should offer an opinion as to whether it is at least as likely as not that the veteran's chronic lumbar syndrome or any back disability is related to trauma in service. A complete rationale should be provided for any opinion given. If the requested medical opinion cannot be given, the examiner(s) should state the reason why. 4. Following completion of the above development, the AOJ should readjudicate the appellant's service connection claim. If any determination remains unfavorable to the appellant, he and his representative should be provided with a supplemental statement of the case and be afforded an opportunity to respond before the case is returned to the Board for further review. The purpose of this remand is to fulfill VA's duty to assist in further developing the veteran's claim by obtaining SSA records, service medical and personnel records, or any alternative records, and a VA medical examination and medical nexus opinion. The veteran is advised that failure to cooperate by not reporting for examination may result in the denial of the claim. 38 C.F.R. § 3.655 (2007). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The appellant and his representative have the right to submit additional evidence and argument on the matter 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 2002 & Supp. 2007). _________________________________________________ A. BRYANT Veterans' Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).