Citation Nr: 1302129 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 12-23 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to October 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 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 Regrettably, a remand is necessary for further evidentiary development of the Veteran's service connection claim. Specifically, the Board finds that records from the Veteran's emergency room visit at the Southwestern Medical Center on May 14, 2005 are relevant to the Veteran's claim of service connection for his back disorder. VA has a duty to obtain relevant records of treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204, 208 (1994). The Veteran should be contacted and asked to authorize VA to obtain records from the Southwestern Medical Center. Additionally, the Veteran was afforded a fee-based examination in June 2012. The examiner opined that the Veteran's current back condition is less likely than not related to the low back condition related injury in service. The rationale provided was the lag time in between the 1976 in-service accident and the 2005 complaints of back pain, the documentation of an acute injury in-service, and absence of continued documentation of back problems subsequently. Although the examiner noted the Veteran's statements that onset of his low back pain after his 1976 in-service accident has continued to the present, the examiner failed to address these statements in the rationale. Therefore, it is necessary to obtain an addendum medical opinion from the examiner that takes into account the Veteran's lay assertions and any additional medical evidence that may be obtained by the RO. Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "[i]f further evidence or clarification of the evidence... is essential for a proper appellate decision"). Accordingly, the case is REMANDED for the following action: 1. VA should send appropriate authorization forms to the Veteran to assist him to obtain complete records of treatment. After receiving authorization, VA should obtain treatment records from the Southwestern Medical Center in Lawton, Oklahoma for the period May 1 to May 31, 2005. A response, negative or positive, should be associated with the claims file. 2. The RO must contact the Veteran to ascertain if he has had any additional relevant treatment since July 2010. Then obtain the records of any relevant medical treatment since July 2010 to the present, including any records from his private doctors and chiropractor in Lawton, Oklahoma. A response, negative or positive, should be associated with the claims file. 3. After completion of the above, return the claims folder to the physician who examined the Veteran in June 2012, if available, for an addendum medical opinion (if they are unavailable, a medical professional with appropriate expertise). The examiner is requested to review the record, and offer 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 approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed back disorder had its clinical onset in service or is otherwise related to active duty, specifically the March 1976 accident. In answering this question, the examiner is reminded that lack of medical evidence of continuity of symptomology is not fatal to a service connection claim. In this case, the examiner is directed to the Veteran's service treatment records in September 1979, wherein he complained of occasional back pain, and January 1991, wherein he stated a history of recurrent back pain. The examiner's rationale must address these in-service complaints of back pain, along with the Veteran's reports of continuous back pain since his 1976 in-service injury. A complete and detailed rationale should be given for all opinions and conclusions expressed. 4. Then, readjudicate the issue of entitlement to service connection for a back disorder. If the benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. 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). (CONTINUED ON NEXT PAGE) 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. 2012). _________________________________________________ MILO H. HAWLEY 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).