Citation Nr: 0003106 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 97-00 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for spondylolysis and spondylolisthesis of the lumbar spine. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. A. Herman, Associate Counsel INTRODUCTION The veteran had active military service from August 1967 to November 1967. This appeal arises from a July 1996 rating decision of the St. Petersburg, Florida, regional office (RO) which denied service connection for spondylolysis and spondylolisthesis. The veteran moved to New Jersey during the pendency of this appeal. As such, jurisdiction over this matter was transferred to the Newark, New Jersey, RO. The Board of Veterans' Appeals (Board) notes that this appeal initially included the issue of entitlement to non-service- connected pension benefits. However, said benefits were granted by the RO in October 1997. As such, the issue of the veteran's entitlement to non-service-connected pension benefits is no longer the subject of appellate review. REMAND Acknowledging that he had a history of back problems prior to his active military service, the veteran contends that he was found to be fit for duty at his enlistment examination. He asserts his spondylolysis and spondylolisthesis were not diagnosed until after he entered service and sustained an injury to his back. He says that he fell from a 12 foot platform shortly after completion of basic training, and that he injured his back in said fall. He maintains he was hospitalized for several days. He states he was discharged from service shortly after he recovered from his injuries. If his spondylolysis and spondylolisthesis preexisted his military service, the veteran asserts the conditions were aggravated by the aforementioned inservice trauma. Statements from the veteran's family members and a fellow service member give a similar history. Preliminary review of the evidentiary record reveals that service medical records are entirely negative for any treatment of a back injury. Instead, an October 1967 narrative summary from Martin Army Hospital reveals that the veteran was seen for complaints of back pain, that he gave a history of numerous pre-service back injuries, and that he was found to have spondylolysis and spondylolisthesis manifested by a bilateral pars defect at L5 with first degree slippage. A report of Medical Board Proceedings indicated that the veteran's spondylolysis and spondylolisthesis was found to have existed prior to service. He was found to be unfit for duty and summarily discharged. The Board finds that additional development is warranted in light of the foregoing. Specifically, a review of the claims folder contains no indication that the RO sought to obtain any hospitalization records from the veteran's alleged inservice back injury. While copies of his service medical records were received from the National Personnel Records Center (NPRC), the veteran's treatment records from Martin Army Hospital cannot be presumed to have been fully incorporated with his service medical records. In order to be certain to locate any such records, the RO should contact the Martin Army Hospital in Fort Benning, Georgia, directly and ask that it forward the veteran's complete medical record. Although he has the burden of submitting evidence in support of his claim, the critical evidence may be in the control of the Federal Government and, in such situations, the VA should be responsible for attempting to provide or obtain the material. Murphy v. Derwinski, 1 Vet. App. 78, 82 (1990). While it is clearly the responsibility of the claimant to present evidence of a plausible claim, the U.S. Court of Appeals for Veterans Claims (Court) has held that the VA, when on notice that relevant evidence may exist which might render the claim plausible, has a responsibility under 38 U.S.C.A. § 5103(a) to let the claimant know what evidence is required. Robinette v. Brown, 8 Vet. App. 69 (1995). However, once the VA informs the claimant of the necessity of that evidence, there must be some degree of probability that the appellant will be able to obtain said evidence. Marciniak v. Brown, 10 Vet. App. 198 (1997). In this case, the Board notes that the veteran's mother indicated, in a statement received in August 1997, that the veteran sought treatment for back problems from B. Sawyer, M.D., shortly after his military discharge. After being examined, she said the veteran was instructed on how to properly care for his back. Thus, the veteran (though his mother) has put the VA on notice that additional evidence may exist which might document that the veteran's back disorder underwent an increase in severity as a result of his military service, and he has identified the source of that evidence. The Board concludes that the VA has a duty to notify the appellant regarding the procurement and submission of any such additional evidence as per 38 U.S.C.A. § 5103(a) (West 1991). Although further delay is regrettable, under the circumstances described above, additional development is considered necessary. Therefore, this case is Remanded to the RO for the following development: 1. The RO should obtain the veteran's complete treatment records from the East Orange VA Medical Center (VAMC) and any other identified VA facility since October 1997. Once obtained, all records must be associated with the claims folder. 2. The RO should contact the Martin Army Hospital in Fort Benning, Georgia, and request that it furnish legible copies of the veteran's complete medical file, to include records of hospitalization. If no records are available, the Martin Army Hospital should be asked to report this determination in writing. The response should be associated with the claims folder. If any further sources of information are identified by Martin Army Hospital, appropriate action should be taken by the RO to obtain the records. 3. The RO must inform the veteran that a medical statement from any medical professional, including Dr. Sawyer, attesting that his back condition underwent an increase in severity during his military service (beyond the natural progression of the condition) would be useful in establishing a well-grounded claim for service connection. The veteran should also be advised that he may obtain and submit records pertaining to medical treatment received for his lumbar spine prior to and subsequent to service. If additional evidence is received, the RO should determine if there is a well- grounded claim for service connection for spondylolysis and spondylolisthesis of the lumbar spine. If so, any additional development warranted by the duty to assist should be accomplished. 4. When the above developments have been completed, the case should be reviewed by the RO. If the decision remains adverse to the veteran, he and his representative should be issued a supplemental statement of the case (SSOC). The SSOC should contain a summary of the pertinent facts and a summary and discussion of the laws and regulations applicable to the veteran's claim, including 38 C.F.R. §§ 3.303, 3.304(b), and 3.306 (1999). The veteran and his representative should be given an opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to afford due process and to obtain additional medical evidence. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. 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. BARBARA B. COPELAND Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).