Citation Nr: 1314731 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 04-19 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an evaluation higher than 40 percent for a service-connected recurrent lumbosacral strain. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for a left hip disorder. REPRESENTATION Appellant represented by: Dennis Peterson, Attorney ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active service from June 1974 to November 1981. This matter arises before the Board of Veterans' Appeals (Board) from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina and a July 2011 decision of the RO in St. Paul, Minnesota. Notably, the issues of an increased rating for a recurrent lumbosacral strain and service connection for a cervical spine disorder were previously denied by the Board in August 2009, but the Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). Subsequently, the Veteran, through his representative, and the Secretary of Veterans Affairs submitted a Joint Motion for Partial Remand (Joint Motion) requesting that the Board's decision be vacated and remanded. In April 2010, the Court granted the motion and remanded the case to the Board for further appellate review. The issues were remanded by the Board in June 2011. The appeal is REMANDED to the Regional Office. VA will notify the appellant if further action is required. REMAND After careful review of the record, the Board finds that a remand for additional development is necessary before proceeding to evaluate the merits of the Veteran's claims. VA's duty to assist includes obtaining records in Federal custody and making reasonable efforts to obtain those outstanding medical records not in Federal custody. 38 C.F.R. § 3.159 (2012). Here, the record shows that the Veteran received treatment from J. R., D.C., from March to July 2010 related to a 2009 motor vehicle accident and again in November 2012. Although a report with an accompanying etiology opinion has been submitted from J. R., D.C., it does not appear that the actual treatment records have been requested or obtained. Therefore, to ensure that VA has fulfilled its duty to assist the Veteran in the development of his claim, remand is necessary. The Board also notes that VA treatment records in the file are only dated through March 2007. The AMC should request the Veteran to identify any and all medical providers who treated him for his claimed and service-connected disabilities after March 2007. After any additional private and/or VA treatment records are obtained, the RO should return the claims file to the February 2012 VA examiner for an opinion as to whether the Veteran's current cervical and left hip disorder are related to the Veteran's service-connected recurrent lumbosacral strain. The Board notes that the most recent VA spine examination was in February 2012 and hip examination was in September 2011, and neither opinion addresses the favorable opinion more recently provided by the Veteran's private treatment provider. Additionally, in a June 2011 remand, the Board requested the AMC obtain any outstanding disability records the Social Security Administration (SSA). Requests for records were made in July 2011 and March 2012 with no response. The June 2011 remand also requested that if the records were found unavailable, the Veteran should be notified. The Board finds a final request for SSA disability records should be made, and, if found unavailable, a formal finding of unavailability should be sent to the Veteran and included in the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any updated decisions of the Social Security Administration (SSA) to award or deny benefits to the Veteran and the records upon which the SSA based its decision. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 2. The RO should undertake appropriate development to obtain a copy of all updated VA treatment records and any other outstanding records pertinent to the Veteran's claims, including the private treatment records J. R., D.C. 3. After the above is completed, the RO should return the claim file to the February 2012 VA examiner who conducted the back examination and ask that he provide an opinion as to whether the Veteran's cervical spine and left hip disorders were either caused by or aggravated by the service connected lumbar spine disability. The claim file should be made available to the examiner. The examiner must also be given access to the Veteran's Virtual VA file and the treatment records contained therein. The examiner must provide a complete rationale for any opinion rendered. 4. Thereafter, the RO should also undertake any other development it determines to be warranted. 5. Then, the RO should readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO should furnish to the Veteran and his attorney a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. The appellant 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 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). _________________________________________________ MICHAEL LANE 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).