BVA9505519 DOCKET NO. 93-12 611 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from April 1967 to March 1970. By a rating decision dated in June 1970, service connection for a back condition was denied on the basis that it was a congenital or developmental abnormality and not a disability under the current law. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 1992 rating decision of the St. Louis, Missouri Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which held no new and material evidence had been submitted to reopen the appellant's claim for entitlement to service connection for a low back disability. Upon the appellant's request, a personal hearing was conducted in February, 1993. REMAND The current record contains copies of the appellant's requested service medical records. Such records indicate that in February 1970, the appellant reported back pain for approximately one and one half years. X-ray evidence at that time indicated spina bifida and questionable spondylolysis, and the examiner then requested an orthopedic consultation. No such orthopedic consultation is associated with the claims folder. During a February 1993 personal hearing, the appellant testified that x-rays of his back were taken during boot camp in San Diego, California, which are not currently associated with the claims folder. In addition, he reported relevant inservice and postservice treatment for a February 1970 back injury, VA outpatient treatment (OPT) for the back in 1983 and 1987, and recent relevant VA OPT consisting of x-rays and a CAT scan, all of which are not currently associated with the claims folder. Finally, he reported that during his military service, he served as field artillery rammer on a gun in Vietnam for 13 months, requiring continuous lifting of approximately 94 pound rounds of ammunition in order to load the guns. In addition, he testified that he was placed on "no duty" status upon returning from Vietnam due to lower back pain. The Board has a duty to assist the appellant in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). The Court of Veterans Appeals (Court) has held the duty to assist involves obtaining relevant medical reports where indicated by the facts and circumstances of the individual case. See Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). See also Counts v. Brown, 6 Vet.App. 473 (1994), (even absent the submission of new and material evidence, "the duty to assist may still be triggered under appropriate circumstances." ) (citing White v. Derwinski, 1 Vet.App. 519 (1991) and Ivey v. Derwinski, 2 Vet.App. 320 (1992)); Gowen v. Derwinski, 3 Vet.App. 286, 289 (1992) (a persuasive single judge opinion stating duty to assist still applies absent a showing of new and material evidence when either the appellant has specifically requested assistance in obtaining probative medical records, or when evidence already before the board raises sufficient notice of possible probative private medical records). The appellant and his representative have repeatedly requested both the RO and the Board to attempt to obtain the above mentioned service and postservice medical records not currently associated with the claims folder prior to making a final determination on appeal. Pursuant to the aforementioned recent decisions of the Court of Veterans Appeals, the Board agrees that such an attempt for the reported relevant records must be made for a complete and adequate decision. Accordingly, the case is REMANDED for the following developments: 1. The RO should contact the National Personnel Records Center and attempt to obtain additional copies of the appellant's service medical records not already associated with the claims folder, including a reported orthopedic consultation in or around February 1970. In addition, the appellant reported that he received x-rays of the back at the Marine Corps Recruit Depot in San Diego, California during boot camp, in or around February 1967, as well as relevant back treatment at the Naval Hospital in Great Lakes, Illinois, in February 1970. If records are sought but not received, the claims folder should contain documentation of the attempts made to obtain the records. The appellant and his representative should also be informed as to the negative results. 38 C.F.R. § 3.159 (1994). 2. The RO should contact the VA Medical Center in Chicago, Illinois, and request copies of reported medical treatment records, including any x-ray films, dated in or around March or April 1970. In addition, the RO should contact the VA Medical Centers in Poplar Bluff, Missouri, and Jefferson Barracks, Missouri, and request copies of VA medical treatment records dated in 1983 and 1987, respectively. Finally, the RO should contact the Harry S. Truman Memorial Veterans Hospital in Columbia, Missouri, and request copies of all medical treatment records, including x-ray and CAT scan reports, dated since 1990. If records are sought but not received, the claims folder should contain documentation of the attempts made to obtain the records. The appellant and his representative should also be informed as to the negative results. 38 C.F.R. § 3.159 (1994). 3. The RO should contact the appellant to determine the names, addresses, and dates of treatment of any physicians, hospitals or treatment centers (private, VA or military) who provided him with additional relevant treatment not already reported to the RO or the Board. After obtaining the appropriate signed authorization for release of information forms from the appellant, the RO should contact each physician, hospital, or treatment center specified by the appellant to obtain any and all medical or treatment records or reports relevant to the claim. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If treatment is reported and those records are not obtained, the appellant and his representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (1994). 4. Thereafter, the RO should readjudicate the claim, setting forth clearly whether new and material evidence has been submitted, and whether the claim is reopened. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in the REMAND decision, detailing the requested development, have, in fact, been substantially complied with. When this development has been completed, and if the benefit sought is not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. It is requested that this statement specifically set forth the reasons and bases for the decision. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this claim, pending completion of the requested development. (CONTINUED ON NEXT PAGE) HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).