Citation Nr: 0502461 Decision Date: 02/02/05 Archive Date: 02/15/05 DOCKET NO. 03-07 553 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability, manifested by spondylolysis and spondylolisthesis in the lumbar spine and mechanical low back pain. REPRESENTATION Appellant represented by: J. Myers Morton, Esq. ATTORNEY FOR THE BOARD G. Zills, Associate Counsel INTRODUCTION The veteran served on active duty in the Air Force from February 28, 1996 to March 29, 1996. This case comes before the Board of Veterans' Appeals (Board) from a June 2001 RO decision which found that new and material evidence had not been submitted to reopen a claim for service connection for a low back disability. A February 2004 Board decision likewise found that new and material evidence had not been submitted sufficient to reopen the claim. The veteran then appealed the Board 's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2004 joint motion to the Court, the parties (the veteran and the VA Secretary) requested that the Board decision be vacated and the case remanded for further action. A July 2004 Court order granted the joint motion, and the case was subsequently returned to the Board. In December 2004, the veteran submitted a lay statement dated in November 2004, and also submitted forms authorizing consent for release of medical records from two Knoxville, Tennessee private medical facilities. The purpose of the joint motion and Court order is for the Board to further address compliance with provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). However, upon consideration of the record, the Board finds that there is a prior VA duty to assist the veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Thus, the appeal is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND The veteran seeks to reopen his claim for service connection for a low back disability. Subsequent to the Court's remand, he has submitted additional evidence in December 2004 in the form of a lay statement from his father that addresses his low back disability. He has not waived initial consideration of this evidence by the RO, and in a written statement dated in November 2004, he has requested that his claim be remanded to the RO for initial consideration of this evidence. Based on the veteran's request, the Board finds that such should be accomplished and, consequently, the claim should be returned to the RO for initial consideration of this evidence and for issuance of a supplemental statement of the case. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Board also notes that in December 2004, the veteran submitted forms authorizing consent for release of medical records from two Knoxville, Tennessee private medical facilities, Spine of Knoxville and the Tennessee Orthopedic Center. Prior to further adjudication of the claim, the RO should ensure that all treatment records from such facilities have been obtained and associated with the claims file. To expedite this claim, the veteran himself is asked to obtain these records, if possible. Any updated treatment records should also be obtained. The actions identified herein are consistent with the duties imposed by the VCAA. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, the Board has no alternative but to defer further appellate consideration of the claim and this case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC for the following actions: 1. The RO should review the claims file and ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. See also 66 Fed. Reg. 45620- 32 (August 29, 2001) (codified at 38 C.F.R. § 3.159). The RO should also ensure compliance with VA's obligations under the VCAA as interpreted by Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. The RO should contact the veteran and ask him to identify all sources of VA and non-VA treatment for a low back disability from the time of his separation from service in 1996 to the present. The RO should then obtain copies of the related medical records which are not already associated with the claims folder, to specifically include, but not limited, to treatment received at Spine of Knoxville and the Tennessee Orthopedic Center in Knoxville, Tennessee, for which the veteran has already submitted authorized consent for release of medical records, dated December 2004. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal in light of all pertinent evidence and legal authority, and in doing so the RO should take into account all evidence submitted since the February 2003 statement of the case. 4. If the benefit sought on appeal remains denied, the RO must furnish the veteran and his representative an appropriate supplemental SOC (to include citation to all additional legal authority considered, and all clear reasons and bases for the RO's determinations), and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ JOHN CROWLEY Acting 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) (2004).