Citation Nr: 0000236 Decision Date: 01/05/00 Archive Date: 01/11/00 DOCKET NO. 97-29 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. A. Markey, Counsel INTRODUCTION The veteran served on active duty from May 1978 to June 1981. This matter came before the Board of Veterans' Appeals (Board) from a December 1996 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia that denied the veteran's claim of entitlement to service connection for a low back disability. A notice of disagreement was received in August 1997. A statement of the case was issued in September 1997. A substantive appeal was received from the veteran in September 1997. In December 1997, the veteran, accompanied by his representative, appeared and presented testimony at a hearing on appeal before a VA hearing officer. A complete transcript of the testimony is of record. Subsequently, the veteran elected to testify before the Board via video-conference, and such a hearing was held in August 1999 by the undersigned Acting Member of the Board, who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102 (West 1991 & Supp. 1999). A complete transcript of that testimony is also of record. FINDINGS OF FACT The veteran's claim of entitlement to service connection for a low back disability is plausible. CONCLUSION OF LAW The claim of entitlement to service connection for a low back disability is well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Applicable law provides service connection will be granted if it is shown a particular disease or injury resulting in disability was incurred or aggravated during active duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). A "determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Statutory law as enacted by Congress also charges a claimant for VA benefits with the initial burden of presenting evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). This threshold requirement is critical since the duty to assist a veteran with the development of facts does not arise until the veteran has presented evidence of a well-grounded claim. Caluza v. Brown, 7 Vet. App. 498, 505 (1995). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (hereinafter the Court) as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect the claim is "plausible" or "possible" is required. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claimant therefore cannot meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded under § 5107(a). Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). According to the Court in Caluza, a well-grounded claim for entitlement to service connection requires competent evidence of the following: i) current disability (through medical diagnosis); ii) incurrence or aggravation of a disease or injury in service (through lay or medical evidence) and; iii) a nexus between the inservice injury or disease and the current disability (through medical evidence). Caluza at 506. Moreover, the truthfulness of evidence offered by the veteran is presumed in determining whether or not a claim is well-grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). The veteran and his representative contend, in substance, that the veteran suffers from a low back disability that resulted from the veteran's involvement in a tank accident while on maneuvers at Camp Grayling, Michigan in late 1979 or early 1980. As will be addressed in the REMAND portion of this decision, records of treatment allegedly received at Munson Medical Center in Traverce, Michigan subsequent to this accident, have not been associated with the claims folder. The veteran has provided lay statements from fellow servicemen to the effect that they witnessed or heard about the tank accident. The veteran's service medical records reflect that he received treatment for low back pain in May 1978 after falling down stairs; a bruise on the back was noted, and X- rays taken at the time revealed no fractures about the lumbar spine. It appears that the veteran was diagnosed with mild back pain ("MBP") and was put on light duty. Curiously, during the December 1997 RO hearing and the August 1999 hearing before the Board via video-conference, the veteran denied that the documented May 1978 injury and subsequent treatment ever occurred. Available service medical records are negative for any treatment subsequent to the described tank accident in late 1979 or early 1980. There does not appear to be any service separation examination of record. In any event, the evidence of record demonstrates that the veteran currently suffers from a low back disability. For example, in May 1988, the veteran was diagnosed with degenerative disc disease, L5-S1, and underwent a posterior fusion, L5-S1, at the Community Hospital of Roanoke Valley. More recently (January 1997), on magnetic resonance imaging (MRI) study conducted at the Carilion Roanoke Memorial Hospital, degenerative changes were noted at L5-S1 and there was a mildly bulging disc at L3-4. The Board finds that the above evidence demonstrates, for the purpose of a well-grounded analysis, that the veteran currently suffers from a low back disability and that he injured his low back in service. Service medical records indicate an injury to the back in May 1978, and although not documented in service medical records, the testimony and statements regarding the claimed tank accident in late 1979 or early 1980 are presumed credible for purposes of determining well-groundedness. As such, the first two requirements under Caluza, in order for a claim to be well- grounded, have been met. With respect to the third requirement under Caluza - a nexus between the inservice injury and the current disability - the Board notes that of record are outpatient treatment reports from Edward A. Dannelly, III, M.D.P.C., which indicate the veteran presented in December 1981 with a history of chronic pain in the lower back due to an inservice tank accident. The veteran was diagnosed with an exacerbation of low back symptoms aggravated due to a tank accident in the military. The Board find that this evidence - again, for the purposes of a well-grounded analysis - sufficiently demonstrates a nexus between the alleged inservice injury and diagnosed low back disability. In sum, the Board finds that the evidence of record sufficiently demonstrates that the veteran's claim of entitlement to service connection for a low back disability is well-grounded in accordance with Caluza. However, for reasons set out below, further development is required to comply with the duty to assist doctrine prior to further appellate review. 38 U.S.C.A. § 5107 (West 1991). ORDER The claim of entitlement to service connection for a low back disability is well grounded; to this extent only, the veteran's claim is granted. REMAND As determined above, the veteran's claim of entitlement to service connection for a low back disability is well grounded, and as such, VA is under a statutory duty to assist the veteran with the development of evidence pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). As noted above, the veteran and his representative claim that the veteran's involvement in a tank accident while on maneuvers at Camp Grayling, Michigan in late 1979 or early 1980 led to a low back disability. They indicate that he was treated the Munson Medical Center (Munson Medical) in Traverce, Michigan subsequent to this accident, but records of this alleged treatment have not been associated with the claims folder. The RO contacted the Munson Medical Center in December 1997, and in a March 1998 reply letter, they indicated that they could not locate any records pertaining to the veteran. It was noted that they could make another attempt if furnished with the attending physician's name, the exact date of hospitalization (since it was prior to 1983), and the veteran's birth date. The Board notes that the veteran was unable to identify the treating physician or exact date of treatment. He did however, provide his birth date, and he estimated treatment as being in late 1979 or early 1980, as he knew there was snow on the ground. The Board finds that another attempt should be made to obtain treatment records from the Munson Medical Center based on the information provided by the veteran. The RO should provide Munson Medical with the veteran's date of birth and request that they again attempt to locate any medical records pertaining to the veteran, dated from late 1979 to early 1980. In the judgment of the Board, there also remains other additional potential sources for this evidence. Specifically, the RO should request that the National Personnel Records Center in St. Louis, Missouri (NPRC) search for any additional service medical records, including clinical records of the veteran's alleged hospitalization at Munson Medical, as well as his separation examination. It is also pointed out that the veteran indicated, during the August 1999 hearing, that he was assigned to the Individual Ready Reserve (IRR) in Virginia (the transportation unit in Galax). The veteran also indicated that he had done some active reserve service with the United States Army Reserves (USAR) prior to being in the IRR. Accordingly, a search for any medical records from the veteran's service in either the USAR or IRR, to include his identified Reserve unit should also be made. These records should be requested from the National Personnel Records Center, or any other appropriate authority. Further, the Board notes that in his records, Dr. Dannelly indicated that the veteran was referred to him by a Dr. Givens, and a September 1983 report from Twin County Community Hospital indicates that the veteran had been treated by Dr. Julius L. Givens of Independence, Virginia. Records of treatment apparently received from Dr. Givens have not been associated with the claims folder. During the August 1999 hearing, the veteran indicated that Dr. Givens was his family physician who was no longer practicing medicine, but appears to have indicated that someone had taken over the practice, and that he may be able to obtain his medical records from that doctor. Such records may be relevant to the veteran's claim, especially given their close proximity in time to the veteran's separation from service, and as such, a search for these records would be appropriate. Finally, the Board notes that there is clear medical evidence within the claims file of an intervening post-service injury that involved the veteran's lower back. Specifically, private medical records from the Roanoke Orthopaedic Center, dated in June 1985, indicate that the veteran was injured when he fell on the job on an offshore oil rig. It was stated that he fell 8 to 10 feet, landing on his back on a valve, and spent about 6 days in a New Orleans Hospital. The Board notes that these hospital records are not within the claims file and they should be obtained. The Board further notes that it unclear whether the veteran was in receipt of any Workmen's Compensation benefits for this or any other such post-service injury, and such should be determined. If the veteran was in receipt of such benefits, all accompanying records should be obtained. Finally, the Board finds it is appropriate that a VA orthopedic examination should be accomplished, and that the examiner should be asked to provide an opinion regarding to what extent, if at all, the veteran's current disability may be attributed to claimed injuries in service, as opposed to any other intervening non- service-connected injuries to the back. In light of the above, this matter is remanded to the RO for the following action: 1. The RO should request the veteran's complete service personnel records from the National Personnel Records Center (NPRC). These records should be reviewed by the RO to ascertain where the veteran was assigned, what type of work he performed, whether he participated in a field training exercise in Camp Grayling, Michigan, and whether he underwent a change in military occupational specialty following such exercise. 2. The NPRC should also be requested to verify all periods of the veteran's service, to include any periods of service in the U.S. Army Reserve (USAR) or Individual Ready Reserve (IRR). 3. Additionally, the RO should request the NPRC to search all applicable secondary sources for any service medical records of the appellant from his active service, or USAR or IRR service. Service medical records, including clinical records and any records from Munson Medical Center in Traverce, Michigan; as well as any separation examination, should be requested. The RO should obtain any additional service medical records that may be available and associate these with the claims folder. 4. The RO should also contact the Commander of the Army Reserve Personnel Center in St. Louis, or any other appropriate authority, and request copies of any of the veteran's Army Reserve (USAR or IRR) medical records. 5. The RO should again contact Munson Medical Center in Traverce, Michigan, provide that facility with the veteran's birth date and other pertinent information, and request that they again search for any medical records pertaining to the veteran, dated in late 1979 and early 1980. 6. To the extent possible (including contacting the veteran) the RO should attempt to contact the doctor who apparently took over Dr. Given's medical practice, and request that they provide copies of any of the veteran's medical records (releases, etc., should be provided to the veteran, if necessary). 7. The RO should contact the veteran and request that he provide the names and addresses of all other medical care providers who have treated him for his claimed back disorder. The RO should request the veteran to furnish signed authorizations for release to VA of private medical records in connection with each non-VA source identified. The RO should attempt to obtain any such private treatment records and any additional VA medical records, not already on file, which may exist and incorporate them into the claims folder. Specifically requested should be the previously identified 1985 records of hospital treatment in New Orleans following an industrial accident. 8. The RO should also contact the veteran and request that he provide specific information regarding any prior claims for Worker's Compensation benefits in connection with injuries during post- service employment. He should be requested to provide a written release for all pertinent employment records, including all employment health records, and documentation pertaining to any claim for worker's compensation benefits, and all clinical records created pursuant to any injuries claimed to have resulted from employment. After securing the necessary releases, the RO should request copies of any such medical records, as well as any decision and the medical records relied upon in awarding the veteran disability benefits from any State Workers' Compensation agency. The RO should clearly document all efforts undertaken to obtain these records and associate any additional records obtained with the claims file. 9. After all the above development is completed, a VA orthopedic examination should be accomplished in order to determine the nature and extent of the veteran's low back disability. The claims folder should be made available to the examiner prior to the examination, and the examiner should offer an opinion, with respect to any low back disability found, as to whether it is as least as likely as not that such disability is the result of an injury in service, as opposed to any intervening post-service injuries, or other non-service connected causes. Specific reasons should be given for this opinion. Before evaluating the veteran, the examiner must review the claims folder, including a copy of this Remand and any evidence added to the record. 10. With regard to all the instructions set forth above, the veteran is advised of his obligation to cooperate by providing the requested information to the extent possible and by reporting for the scheduled examination(s). Failure to cooperate may result in adverse action pursuant to 38 C.F.R. §§ 3.158 and 3.655. 11. The RO should readjudicate the veteran's claim of entitlement to service connection for a low back disability on the merits, taking into consideration all applicable VA laws and regulation. If the decision remains adverse to the veteran, he and his representative should be provided with a supplemental statement of the case and be given the appropriate time to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. No action is required of the veteran unless he receives further notice By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purpose of this REMAND is to further develop the record. No action is required by the veteran until he receives further notice. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. B. LEMOINE Acting Member, Board of Veterans' Appeals