Citation Nr: 0813364 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 07-08 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a lower back condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The veteran served on active duty from August 1956 to August 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2007, the RO sent the veteran a Statement of the Case concerning, in addition to his above indicated claim, a claim for entitlement to service connection for bilateral hearing loss. The Board notes that the veteran perfected his appeal on the issue of entitlement to service connection for bilateral hearing loss in his March 2007 VA Form 9. As an October 2007 rating decision granted the veteran's claim of entitlement to service connection for bilateral hearing loss, representing a complete grant of the benefit sought on appeal, such issue is no longer in appellate status. The Board notes that the appellant requested a video- conference hearing in connection with the current claim. The video-conference hearing was subsequently scheduled and held in December 2007 before the undersigned Veterans Law Judge. The appellant testified at that time and the hearing transcript is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The veteran seeks service connection for a lower back condition. The veteran contends that he injured his back in service while working as an aircraft mechanic as the job included a significant amount of heavy lifting. The veteran's service medical records reveal that in July 1960 the veteran was treated for a fever and back pain. The veteran's medical examination at entry into active duty, performed in August 1956, and at separation from active duty, performed in August 1960, do not reveal any spine or lower back condition. The veteran, on his Report of Medical History, at entry and separation from active duty, did not report any spine or lower back condition. The veteran testified at a hearing, held before the undersigned Veterans Law Judge in December 2007, that he was treated for a back condition at the VA medical center at Mountain Home, Tennessee, from 1990 to 1993. The veteran reported that he was treated for a back condition in 1962 by Dr. Bud in Johnson City, Tennessee. He indicated that Dr. Bud performed an x-ray and determined that the veteran had three bridging and overlapping disks, spinal deterioration, and a possible old break in the middle of the back. The veteran testified that he was examined, prior to employment, by Clinchfield Railroad, now CSX Railroad, and was determined to have a back condition. He indicated that he was provided with a disability retirement from CSX Railroad. The records of the above indicated treatment have not been associated with claims folder and there is no indication that any attempt has been made to obtain these treatment records. The veteran's post-service medical records associated with the claims folder reveal that the veteran was diagnosed with mild spondylotic changes of the thoracic spine and grade I anteriolisthesis of C7 on T1 in January 2005. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2007). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, the claim must be remanded for attempts to be made to obtain the veteran's VA medical records pertaining to treatment for a lower back condition, that are dated since 1990. In addition, attempts must be made to obtain the records pertaining to the veteran's lower back condition of Dr. Bud in Johnson City, Tennessee, and Clinchfield Railroad, now CSX Railroad. The Board notes that, to date, VA has neither afforded the veteran an examination nor solicited a medical opinion as to the onset and/or etiology of his lower back condition. Under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record reveals that the veteran has a current diagnosis of a lower back condition and performed heavy lifting while in service. However, there is no evidence associated with the claims folder as to whether the veteran's lower back condition is related to or caused by the veteran's in-service heavy lifting. Accordingly, the veteran should be afforded a VA Compensation and Pension examination. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims file VA treatment records pertaining to the veteran from the VA medical center in Mountain Home, Tennessee, dated from 1990 to 1993. 2. After securing the proper authorization, request treatment records pertaining to the veteran that from Dr. Bud in Johnson City, Tennessee, and Clinchfield Railroad, now CSX Railroad. Any additional pertinent records identified by the veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the veteran, and associated with the claims file. 3. Arrange for the veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any lower back condition found to be present. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should comment on the veteran's report regarding the onset of his back pain and back condition and render an opinion as to whether it is more likely than not (meaning likelihood greater than 50%), at least as likely as not (meaning likelihood of at least 50%), or less likely than not or unlikely (meaning that there is a less than 50% likelihood) that the veteran's lower back condition is related to or had its onset during service, and particularly, to his in- service heavy lifting. The rationale for all opinions expressed should be provided in a legible report. 4. Undertake any other development deemed warranted and then readjudicate the veteran's claim. If the benefits sought on appeal are not granted, the RO should issue the veteran and his representative a supplemental statement of the case and provide the veteran an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ S. S. TOTH 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) (2007).