Citation Nr: 1012149 Decision Date: 04/01/10 Archive Date: 04/14/10 DOCKET NO. 06-05 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for lumbosacral strain. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for right eye injury. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for neuropathy, bilateral wrists, claimed as injury to bilateral wrists. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tabitha G. Macko, Associate Counsel INTRODUCTION The Veteran had active service from May 1975 to August 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied service connection for lumbosacral strain and continued the denial of service connection for neuropathy, bilateral wrists; bilateral hearing loss, tinnitus, and right eye injury after determining new and material evidence had not been presented. The Veteran appealed all these issues but in February 2006 he perfected his appeal only regarding the lumbosacral strain, right eye injury and neuropathy, bilateral wrists claims. The Veteran failed to appear before a travel board hearing at the RO in September 2006; therefore his request for a hearing is deemed waived. The Veteran's March 2009 statement regarding his bilateral hearing loss and tinnitus has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran submitted a statement in March 2009 regarding the claims that are pending before the Board. He indicated he has been receiving treatment at two named VA medical facilities and that treatment records applicable to his claims were available. Further, a private medical treatment report, for a practitioner in Redding California, dated 2000 contains the note that the Veteran had had an annual physical examination at the VA facility. Now that VA has been put on notice, these reports must be obtained. 38 U.S.C.A. § 5103A(b)(1); See Bell v. Derwinski, 2 Vet. App. 611 (1992). Upon review of the Veteran's service treatment records, the Board notes two complaints regarding his lower back for which the Veteran sought treatment, the first in December 1978 and then again in February 1981. The VCAA requires that the VA assist a claimant in obtaining evidence needed to substantiate the claim. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009). Review of the evidentiary record shows that the Veteran has not been afforded a Compensation and Pension examination for his back disability. While the Board notes that the 1981 separation examination revealed no spinal abnormalities, the Veteran is competent to assert that he has experienced symptoms relating to his back since service. As such there remains some question as to whether the Veteran's current back disability is attributable to his active military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, given the Veteran's contentions regarding his back condition, and the medical evidence suggesting the current back condition possibly attributable to service, the Board finds that an examination is necessary prior to final appellate review. See Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's treatment reports from the following VA medical facilities, dated January 2000 to present: Redding, California, Ukiah, California, and the San Francisco VA Medical Center. Document any negative replies for the record and inform the Veteran so that he may obtain the records. 2. Then schedule the Veteran for the appropriate VA spine examination to determine whether there is a causal nexus between his active military service and his current low back condition. a. The claims file must be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. All appropriate testing should be conducted, and all pertinent disabilities associated with the back found to be present should be diagnosed. b. The appropriate examiner must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) the Veteran's back disability had its origin in service or is in any way related to the veteran's active service or more properly attributable to post service occurrences. A rationale for any opinion reached must be provided. 3. If and only if the added VA treatment records indicate there may be a current right eye disability associated with service, only then afford the Veteran a VA eye examination with an appropriate examiner. The claims file must be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. All appropriate testing should be conducted, and all pertinent disabilities associated with the right eye found to be present should be diagnosed. The appropriate examiner must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) the Veteran's right eye condition had its origin in service or is in any way related to the Veteran's active service. A rationale for any opinion reached must be provided. 4. Upon completion of the above, readjudicate the issues on appeal and consider all evidence received since issuance of the Statement of the Case. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate 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. 2009). _________________________________________________ C. CRAWFORD 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) (2009).