Citation Nr: 1301579 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-34 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Karl Kazmierczak, Attorney at Law ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from December 1999 to November 2003. The period of service between November 2003 to July 2005 has been deemed to have been under dishonorable conditions. See January 2008 administrative decision. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO). A notice of disagreement was received in January 2010, a statement of the case was issued in June 2010, and a substantive appeal was received in August 2010. The Veteran had perfected an appeal in connection with a claim of entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. In a September 2011 rating decision, the RO awarded service connection for a psychiatric disorder, diagnosed as PTSD. This was a full grant of the benefit sought on appeal. The only remaining issue involves the claim of service connection for low back disability. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board finds additional development is warranted prior to deciding the issue on appeal. Specifically, in reviewing the evidence of record, the Board concludes that the Veteran is entitled to a VA examination in connection with this claim, as the facts pertaining to the back disability meet the criteria under 38 U.S.C.A. § 5103A(d) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). For example, there is evidence of persistent or recurrent symptoms of back pain following service discharge with 2010 MRI findings of disc desiccation and spondylosis, there is evidence of in-service low back pain complaints beginning in 2002 and continuing in 2003, the current low back pain complaints may be associated with the Veteran's service, and there is insufficient evidence to decide the claim. See id. Since service discharge, there are treatment records, both VA and private, that show complaints of low back pain here and there. It is unclear whether the Veteran has received treatment for the low back pain, versus reporting back pain when seen by both VA and private physicians as part of his medical history. Stated differently, most of the Veteran's treatment since service discharge has involved treatment for a psychiatric disorder with notations by medical personnel of chronic low back pain. VA treatment records show the Veteran underwent an MRI in 2010 and an x-ray in 2011 for the lumbar spine, but there no treatment record in connection with such reports. Thus, the Veteran should inform VA if he has received any post service treatment for low back pain. Accordingly, the case is REMANDED for the following actions: 1. The RO should ask the Veteran to identify any (and all) providers of all evaluations and/or treatment he has received for the low back disability, and to provide releases for VA to obtain records of all such private evaluations and/or treatment. If any identified private provider does not respond to the RO's request for records sought, the Veteran must be so advised, and reminded that ultimately it is his responsibility to ensure that private medical records are received. 2. After the development sought above is completed, the RO should schedule a VA examination to ascertain the current nature and likely etiology of any low back disability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should offer an opinion as to whether or not (a) the Veteran currently has a low back disability, which diagnosis or diagnoses should be provided, and (b) if so, whether any such diagnosed disability entity is at least as likely as not (a 50 % or greater probability) due to or the result of the Veteran's active military service. The examiner must make specific reference to the Veteran's service treatment records, which contain multiple complaints of low back pain beginning in 2002 and continuing in 2003. 3. The RO should then re-adjudicate the issue on appeal. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 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. 2012). _________________________________________ ALAN S. PEEVY 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) (2012).