Citation Nr: 0811729 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 07-04 110 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a claimed cervical spine disorder. 2. Entitlement to service connection for a claimed low back disorder with sciatica. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The veteran served on active duty from February 1979 to October 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from the RO. The veteran testified at a hearing before the undersigned Veterans Law Judge sitting at the RO in August 2007, and a transcript of the hearing is of record. The issues on appeal are being remanded to the agency of original jurisdiction (AOJ) via the Appeals Management Center in Washington, DC. REMAND A review of the claims files reveals that low back complaints with sciatica were noted in service, although not on post- service periodic service examinations. The veteran has testified that he has had back problems with sciatica, as well as cervical spine problems, since service. There is also a September 2007 statement from the veteran's wife, a registered nurse who was married to the veteran while he was in service, supporting his assertions of back manifestations since service. While there are April and September 2007 reports from a VA health care provider that the veteran has had low back pain with episodic flare-ups ever since he incurred a lifting injury in 1979, this health care provider has not provided a diagnosis of a specific back disability. Although there is a November 2006 VA examination report on file, the examiner said that he could not provide an opinion whether there was a causal connection between the veteran's current low back disability and service without resorting to speculation. Hence, the Board concludes that there is insufficient medical evidence on file on which to make a reasoned determination on the issues on appeal. VA has the authority to schedule a compensation and pension examination when such is deemed to be necessary, and the veteran has an obligation to report for that examination. Pursuant to 38 C.F.R. § 3.327(a) (2007), examinations will be requested whenever VA determines, as in this case, that there is a need to verify the existence and etiology of a disability. See also 38 C.F.R. § 3.159 (2007). Accordingly, the remaining issue is REMANDED to the AOJ for the following actions: 1. The AOJ should take appropriate action to contact the veteran and ask him to provide the names, addresses and approximate dates of treatment for any health care providers, including VA, who may possess additional records pertinent to his claims for service connection for cervical spine and low back disabilities, such as treatment since the most recent evidence dated in August 2007. After obtaining any necessary authorization from the veteran for the release of his private medical records, the AOJ should obtain and associate any relevant additional records with the claims file. If the AOJ is unsuccessful in obtaining any such records identified by the veteran, it should inform the veteran of this and request him to provide a copy of the outstanding medical records if possible. 2. The AOJ should schedule the veteran for a VA examination with an examiner who has not previously examined the veteran to determine the nature and likely etiology of the claimed cervical spine and low back disorders. The veteran's VA claims folder, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect review of pertinent material in the claims folder. Any necessary tests or studies must be conducted, and all findings must be reported in detail. After reviewing the claims file and examining the veteran, the examiner should provide an opinion whether it is at least as likely as not (50 percent or more likelihood) that the veteran has a current cervical spine and/or low back disability that had its clinical onset during or, in the case of arthritis, within a year of service. A complete rationale for all opinions must be provided. 3. The AOJ must notify the veteran that it is his responsibility to report for the above examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.655 (2007). In the event that the veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Following completion of all indicated development, the AOJ should readjudicate the veteran's claims of service connection for cervical spine and lower back disabilities, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If either of the benefits sought on appeal remains denied, the veteran should be provided a Supplemental Statement of the Case. The veteran should then be given an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The veteran may present additional evidence or argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the AOJ. 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. 2002) (Historical and Statutory Notes); see M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).