Citation Nr: 1304170 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 09-33 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of low back injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ann L. Kreske, Counsel INTRODUCTION The Veteran had verified active duty from February 1995 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefit sought. 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 seeks service connection for back disability. In support, he reports that he injured his back in service and has had back symptoms since that time. As such, he asserts service connection is warranted because the back disability is related to the in-service injury. The Veteran was afforded a VA spine examination in April 2009. Following the examination, the examiner diagnosed the Veteran as having myofascial lumbar syndrome. The examiner opined that the Veteran's back disability was not related to service because he had a single episode of back problems in service. The service treatment records, however, reflect significant treatment for low back pain, and show that he was placed on physical profile due to low back pain on multiple occasions. As such, it appears that the examiner based his assessment on an inaccurate factual predicate, especially given the Veteran's competent report of having back problems since service. The Board finds that the April 2009 VA examination report is not adequate for rating purposes and thus another VA examination is necessary to adjudicate this claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board has no discretion and must remand this claim for further development. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding VA or private treatment records pertaining to his back problems. Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment, and associate all obtained records with the claims folders either physically or electronically. With respect to any private medical records, the RO must document that it has made at least two requests to the custodian of a private record unless it is made evident by the first request that a second request would be futile in obtaining such records. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back symptoms. 3. After physically or electronically associating all pertinent records with the claims folder, schedule the Veteran for a VA examination to determine the nature, extent, onset, and likely etiology of any back disorder found to be present. The claims folder must be made available and reviewed by the examiner, and all necessary tests should be conducted. Thereafter, the examiner must provide an opinion as to whether it is at least as likely as not that any back disability found to be present is related to or had its onset in service. In doing so, the examiner must specifically acknowledge and discuss the Veteran's service treatment records documenting complaints and treatment for low back pain, and his competent and credible report of low back symptoms since service. All findings and conclusions should be set forth in a legible report. 4. Then readjudicate the appeal. If any benefit sought remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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 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). _________________________________________________ STEVEN D. REISS 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).