Citation Nr: 1230833 Decision Date: 09/10/12 Archive Date: 09/19/12 DOCKET NO. 08-26 455A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified at a July 2012 hearing sitting at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. The issue of entitlement to service connection for a respiratory disability, claimed as asthma, was raised in the Veteran's written statement dated and received by VA in April 2012. Review of the claims file does not reflect that this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Accordingly, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. VA will notify the appellant if further action is required. REMAND During the Veteran's July 2012 Board hearing, he indicated that he had been in receipt of treatment from VA medical facilities beginning in 2005, and continued to receive treatment for his back disability at the Anniston, Alabama VA Outpatient Clinic. Review of the claims file reveals that the most recent treatment records from that facility concerning the Veteran are dated in June 2007. On remand, the records generated since that time must be obtained and considered. Additionally, the Veteran submitted a page from the notice letter of his Social Security Administration (SSA) decision noting that he had been awarded benefits effective September 2004. However, it does not appear that the actual benefits decision or the records considered in making that decision have been obtained. The United States Court of Appeals for the Federal Circuit has held that SSA records must be sought when directly relevant to the claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In light of the Veteran's November 2005 written statement and his July 2012 Board hearing testimony that his back problems impeded his ability to work, suggesting that the Veteran's SSA benefits may be at least partially based on his back disability, the SSA records must also be obtained. Finally, VA is obliged to provide a medical examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low for the purposes of obtaining a medical opinion. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Service treatment records reflect multiple complaints of back pain, and the Veteran's July 2012 Board hearing testimony asserts that he experienced back symptoms from the time of his military service until the time he began receiving treatment from a private practitioner in approximately 2004, at which time a magnetic resonant imaging test (MRI) showed degenerative disc disease of the lumbar spine. Most importantly, the medical evidence of record tends to suggest, but does not outright relate, a relationship between the current disability and the Veteran's military service. A private practitioner noted in October 2006 that the Veteran's current pathology was not acute, but rather that it had occurred over past years; the same practitioner noted in March 2005 that the Veteran had a bad case of osteoarthritis, such that it was unfortunate the case was so bad at such a young age, and the April 2004 MRI report itself noted that there was evidence to suggest old spondylolysis bilaterally at L5-S1. On remand, a VA examination to determine the etiology of the Veteran's lumbar spine disability should be conducted. Accordingly, the appeal is REMANDED for the following actions: 1. Contact the Social Security Administration (SSA) and request a copy of all materials, to include medical records, considered in conjunction with the Veteran's claim for SSA benefits. Once obtained, associate these records with the claims file. If records are not available, include a note to that effect in the claims file. 2. Obtain copies of all VA outpatient treatment records from the Anniston, Alabama VA medical facility and associate them with the claims file. Document all attempts to secure this evidence in the claims file. If it is determined that they are unavailable, notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. Give the Veteran a reasonable length of time in which to respond. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his back disorder. Make the claims file and a copy of this remand available to the VA examiner in conjunction with the examination. All necessary diagnostic testing should be conducted and commented upon by the examiner. Pertinent documents should be reviewed, including service treatment records and the Veteran's statements, especially his July 2012 Board hearing testimony. The examiner should then offer an opinion as to whether the Veteran's back disability is at least as likely as not (50 percent probability or greater) related to his military service. The examiner should fully explain all stated opinions, citing to specific evidence or records as appropriate. 4. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). 5. Readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue an additional Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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. 2011). _________________________________________________ ROBERT C. SCHARNBERGER 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) (2011).