Citation Nr: 1323789 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 07-09 888A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder, to include as secondary to the service-connected left foot disability, including by way of aggravation. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran had active service from May 1962 to May 1965. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the above Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2009, a Travel Board hearing was held at the RO before the undersigned. A transcript of that hearing has been associated with the claims file. In March 2010, the Board remanded the case for additional development. In July 2011, the Board issued a decision that, in part, denied service connection for a low back disability. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (CAVC) and in January 2012 the part of the decision that denied the low back claim was vacated and the case was remanded to the Board for action consistent with the Joint Motion for Remand. In July 2012, the Board remanded the claim for further development. The Board most recently remanded the case for additional development in February 2013. The case has now been returned to the Board for appellate review. The issue of reopening the claims for service connection for bilateral hearing loss and tinnitus and the issue of entitlement to an increased rating for the left foot disability have been raised by the record, but they apparently have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claim. Virtual VA currently contains evidence pertinent to the claim that is not already included in the paper claims files, namely VA treatment records dated between July 2012 and February 2013. The Veteran submitted additional evidence to the Board in June 2013; this evidence consisted of a private medical opinion. Because no written waiver of pertinent records that were not reviewed by the AOJ has been submitted, referral to the AOJ of that evidence is required. See 38 C.F.R. § 20.1304. In any case, since the case is being remanded, the AOJ will nevertheless have the opportunity to consider the newly-submitted document. 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 contends that he currently suffers from a low back disorder that he attributes to an in-service injury that occurred in 1963, when his left foot was trapped by a falling hatch and he wrenched his back in reaction to that injury. He has submitted a written statement from his spouse at the time and she recalled that the Veteran had a problem with his back while he was recuperating from the left foot injury. The Veteran maintains that his low back pain has persisted since service to the present time. The Veteran has submitted a private medical opinion. A June 2013 written statement from the physician states that she has been treating the Veteran since 2011 for low back pain and that the Veteran has related to her the circumstances of the October 1963 incident wherein he injured his left foot. She opined that the Veteran's current back problems were more likely than not the result of the 1963 injury and she also stated that his report of the history of his back condition is consistent with the expected natural history of such an injury. However, the physician did not indicate that she had reviewed any of the Veteran's service medical records or any of his post-service treatment records, including those associated with his application for Social Security benefits in the mid-1990s. In Savage v. Shinseki, 24 Vet. App. 124 (2011), the United States Court of Appeals for Veterans Claims (Court) held that in some circumstances VA has a duty to return for clarification unclear or insufficient examination reports, even when they do not originate from VA medical personnel. In particular, such clarification should be obtained where the missing evidence bears greatly on the probative value of the examination report. Here, clarification is needed; specifically, the private physician should explain what records she reviewed and how the clinical findings over the years are consistent with her opinion. In addition, none of this physician's treatment records have been included in the claims file. Therefore, the case is REMANDED for the following: 1. Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. Obtain all of the Veteran's outstanding VA medical treatment records, and associate them with the claims file. Obtain all outstanding private records as well, in particular all records from Tallahassee Primary Care Associates. 3. To the extent an attempt to obtain any of these records is unsuccessful, the claims file must contain documentation of the attempts made. The appellant and his attorney must also be informed of the negative results and be given opportunity to secure the records. 4. After obtaining any required authorization from the Veteran, contact the private physician who provided the June 2013 medical opinion and have her clarify the basis for her opinion. Ask her to identify what clinical records she reviewed, including service medical records, VA medical records, Social Security Administration records and other private records. Ask her to explain how the clinical findings of record in-service and post-service support her opinion. 5. If any additional development is necessary to re-adjudicate the issue on appeal, especially in light of any newly-received records, that development must be done. 6. If any benefit sought on appeal remains denied, the Veteran and his representative must be provided a Supplemental Statement of the Case. An appropriate period of time must be allowed for response. 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). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ L. M. BARNARD 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).