Citation Nr: 1325544 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 10-18 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a back disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The appellant served on active duty from September 1969 to July 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). In April 2011, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The record was held open after the hearing for an additional 60 days so that the appellant could submit additional evidence. In May 2011, the appellant submitted additional lay evidence. That evidence was not accompanied by a waiver of RO consideration. Nevertheless, in light of the action taken below, it should be considered by the RO on remand. 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 appellant testified in April 2011 that he sustained an injury to his back in service when he lost his footing and fell down stairs in 1970. He reports that he was treated in service, but that his back never could "get right" after that incident and that he experience chronic intermittent back pain ever since. He further testified that he sustained two post-service back injuries in the 1980s. In support of this claim, the Veteran has submitted May 2011 lay statements from a friend and family members indicating that the appellant experienced low back problems since service. The Board finds the Veteran's testimony regarding having back problems since service, as well as the lay accounts offered by a friend and by family members, both competent and credible as to the Veteran's back problems since service. During the course of this appeal, however, the Veteran was afforded a formal VA examination and in the January 2010 VA examination report, the examiner opined that the Veteran's back disability was not likely related to service. As those statements were received after the January 2010 VA spine examination and opinion, the Board finds that remand is necessary for an additional medical opinion that considers the newly submitted lay statements. Additionally, it appears that there are outstanding records relevant to the Veteran's appeal. Specifically, available VA treatment notes show that he had VA imaging of the lumbosacral spine in November 1994 and October 1998 in conjunction with complaints of low back pain. However, there are no corresponding VA treatment records for those dates, nor are there VA treatment notes of record dated prior to August 1998. Additionally, the appellant has reported treatment for back problems in the 1980s, including back surgery. The record also references back injuries in 1982 and 1985. However, no records related to that prior treatment have been requested. Accordingly, remand is necessary to obtain outstanding relevant records relating to any intercurrent low back injuries in the 1980s. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit additional lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back symptoms, as well as medical statements from examiners addressing whether there is a relationship between his back disability and service. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. After obtaining authorization from the Veteran, contact any private provider where the Veteran was treated for his low back since service and request a copy of any relevant records, to include records relating to back injuries and back surgery in the 1980s. Document all attempts to secure this evidence in the claims file. If, after making reasonable efforts to obtain named records the RO is unable to secure same, notify the appellant and (a) identify the specific unavailable records; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. Give the appellant an opportunity to respond. 3. Obtain any relevant outstanding VA treatment records dated prior to August 1998 and dated since June 2009, to include any treatment records relating to low back treatment in November 1994 and October 1998. 4. Schedule the Veteran for a VA examination to identify all back disabilities found to be present and to determine whether it is at least as likely as not that the disability is related to or had its onset in service. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records and the newly submitted lay statements and all necessary tests should be conducted. The examiner should indicate whether it is at least as likely as not that the Veteran's current low back disability is related to service. In offering this opinion, the examiner must consider the Veteran's competent and credible testimony of having chronic intermittent back pain in and since service as well as the lay statements offered by a friend and family members that corroborate this account, which predates his post-service intercurrent back injuries. Thus, in offering this opinion, the examiner must accept as true the competent and credible report that the Veteran has had recurrent back problems since service. All findings and conclusions, accompanied by a rationale, should be set forth in a legible report. 5. Then readjudicate the appeal. If the benefit sought on appeal remains denied, provide a Supplemental Statement of the Case and allow an appropriate period of time for response. Then, return the appeal to the Board. 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). _________________________________________________ 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).