Citation Nr: 1316233 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-03 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for low back disorder, to include as secondary to service-connected residuals, right femur fracture. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty with the United States Air Force from December 1980 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO), which denied, in pertinent part, service connection for a low back disorder. In February 2013, the Veteran testified at a Videoconference hearing before the undersigned Acting Veterans Law Judge (VLJ). A transcript of that hearing is of records and associate with the claims folder. The issue entitlement to a separate evaluation for a right knee disorder, to include as secondary to the right femur fracture has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, 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 (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran asserts that service connection is warranted for a low back disorder due to his service-connected right femur fracture. He maintains that because of his pronounced altered gait, he has developed a low back disorder. A review of the record reveals that the Veteran has sustained a back injury after service on his job in 2007. The Veteran maintains that this injury was caused as a result of his service-connected femur disability and that his leg has given way on many occasions since the femur injury. He related that the Washington State Department of Labor and Industries initially provided him with workman's compensation, but later discontinued his benefits indicating, in pertinent part, that his low back disorder was secondary to his inservice right femur injury. The records related to his treatment and the decision of the Washington State Department of Labor and Industries are needed in connection with this claim. Those records should be obtained prior to final adjudication of this claim. The Veteran also indicates that he has received treatment from Enumclaw Medical Center from 1990 to 2007 in connection with his back disorder. A release of information was previously submitted for VA to obtain those records in connection with this claim. However, the release of information expired, and although the Veteran has indicated that he would obtain those records, the records have not been associated with the claims folder. These records, also are important to resolution of the instant claim. The RO/AMC should also attempt to locate these records. During the Veteran's February 2013 videoconference hearing, the Veteran testified that he was to have a procedure performed on his back by VA in March 2013. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet.App. 462, 466-6 (1998); Bell v. Derwinski, 2 Vet.App. 611, 613 (1992). The RO/AMC should obtain and associate with the claims folder all outstanding records related to the Veteran's low back disorder. Finally, the Veteran has indicated that he has not undergone any VA examination in connection with determining the etiology of his low back disorder. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 3 8 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet.App. 79 (2006). The Veteran sustained injury to his right femur in service, and competently reports an altered gait, which is also shown by medical records. The possibility exists of a causal connection between service and current disability. VA examination with an opinion is necessary. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the RO/AMC, to include VA outpatient treatment records of the Veteran's treatment of his low back disorder and his March 2013 VA surgical procedure, if any, performed on his low back. 2. After obtaining an appropriate release of information from the Veteran, the RO/AMC should obtain medical records of the Veteran's treatment from Enumclaw Medical Center from 1990 to 2007 and associate those records with the claims file. 3. After obtaining an appropriate release of information from the Veteran, the RO/AMC should obtain medical records and any medical determination made regarding the Veteran's workman's compensation claim in 2007 from Washington State Department of Labor and Industries and associate those records with the claims folder. 4. Thereafter, the Veteran should undergo a VA orthopedic examination to determine the nature and etiology of any low back disorder he may have. All indicated studies should be performed. The examiner should review the entire claims folder, and his/her report should include discussion of the Veteran's documented medical history and assertions. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's low back disorder, was caused or is aggravated by his service-connected residuals, right femur fracture. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, such should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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). _________________________________________________ WILLIAM H. DONNELLY Acting 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).