Citation Nr: 1042011 Decision Date: 11/08/10 Archive Date: 11/18/10 DOCKET NO. 04-38 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic disability exhibited by back pain. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Young INTRODUCTION The Veteran served on active duty from December 1966 to September 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from a April 2004 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to the benefits currently sought on appeal. In August 2005, the Veteran testified before a decision review officer at the RO. A copy of the hearing transcript is associated with the claims folder and has been reviewed. This matter was previously before the Board in, November 2007, August 2008 and March 2009. In November 2007 and August 2008 this case was remanded for further development. In March 2009, the Board denied the Veteran's claim for service connection for a chronic disability exhibited by back pain. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and in a February 2010 Order, the Court granted the parties' Joint Motion for Remand (joint motion), remanding the case for compliance with the terms of the joint motion. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND In the joint motion the parties agreed that the Board should remand the case, in pertinent part, to attempt to obtain additional records pertaining to in-service treatment of a back injury. In particular, the Veteran maintains that he was treated for a back injury for about two weeks in June 1968 onboard the U.S.S. Tripoli. There is no indication in the record that such records were specifically requested. On remand the RO should contact the National Personnel Records Center (NPRC), the Department of the Navy and the Naval Historical Center, Ship Deck Logs Section and any other appropriate repository and request any records associated with treatment for the Veteran's back in June 1968. The parties to the joint motion also agreed that the Veteran should be afforded a VA medical examination in order for the examiner to consider any records that are obtained pursuant to the aforementioned development and the notations regarding an in- service back injury contained in the November 1970 VA examination report. In addition, the examiner should provide an opinion as to the likelihood of whether the Veteran's current back disability is caused by or a result of his military service. Accordingly, the case is REMANDED for the following action: 1. The RO must review the claims folder and ensure that all notification and development action required by the VCAA are fully complied with and satisfied. Specifically, the RO should: (a) Notify the veteran of the information and evidence necessary to substantiate his claim of service connection for a back disability. (b) Notify the veteran of the information and evidence he is responsible for providing; and (c) Notify the veteran of the information and evidence VA will attempt to obtain, e.g., that VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency and will make as many requests as are necessary to obtain relevant records from a Federal department or agency; and 2. Contact the appropriate repository, including but not limited to, the NPRC, Department of the Navy and/or the Naval Historical Center, Ship Deck Logs Section and request a search for treatment and or sick bay records associated with the U.S.S. Tripoli regarding a back injury that resulted when the Veteran tripped and fell down a flight of stairs in June 1968. Any other agency or authority reasonably believed by the RO to hold copies of the Veteran's service treatment records should also be contacted in an effort to retrieve such records. If no records are located, a negative response should be obtained. 3. After the above development is completed, schedule the Veteran for a VA examination to determine the nature, extent, and etiology of any back disability. The claims folder and a copy of this remand must be made available to the examiner in conjunction with the examination. All indicated testing should be conducted. All pertinent pathology should be noted in the examination report. For any back disability found, the examiner should indicate whether there is a 50 percent probability or greater that it had its clinical onset in service or is otherwise related to his period of service. The examiner should address the evidence in the claims folder, including the Veteran's complaints of back problems since service, the August 1970 service discharge examination report, the November 1970 VA examination report, and the September 2008 VA examination report. The rationale for all opinions must be provided. 4. Re-adjudicate the issue of entitlement to service connection for a chronic disability exhibited by back pain. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2009). The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ THOMAS J. DANNAHER 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 Court. 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) (2010).