Citation Nr: 1325700 Decision Date: 08/14/13 Archive Date: 09/24/13 DOCKET NO. 11-23 450 ) DATE 14 AUG 2013 On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada 1. Whether new and material evidence has been received to reopen a claim for service connection for a low back disorder. 2. Entitlement to service connection for lumbar radiculopathy with right foot drop. REPRESENTATION Appellant represented by: Jewish War Veterans of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION Please note 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 had active duty service from February 1948 to January 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claims. In May 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a personal hearing held at the Las Vegas RO. A transcript of the hearing has been associated with the Veteran's claims file located on the Virtual VA paperless claims processing system. Further review of the Virtual VA reveals additional medical records that are also pertinent to this claim. These appeals are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND Review of the record indicates the Veteran has been in receipt of Social Security disability payments since 1988. A copy of his award letter is of record, however, it does not specify the reason for their decision that he was disabled at that time. The Veteran's records from the Social Security Administration (SSA) have not been requested, and this claim must be remanded so that they can be obtained. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (unless it is clear that records in the possession of the Social Security Administration are irrelevant to the claim, an effort must be made to obtain them). -2- The Veteran has asserted that his service treatment records (STRs) were destroyed in a fire at the National Personnel Records Center (NPRC). The record shows that his STRs were requested from the Department of the Navy in 1955. At that time, his complete file was not found, and it was noted that the search would continue. There is no indication in the file that his STRs were ever re-requested. Accordingly, a request should be made for a complete copy of his STRs. In his original claim submitted in October 1954, the Veteran indicated that he was treated for his back at T.W.A. Medical Department in Los Angeles, CA, in January 1954. On remand, efforts should be undertaken to obtain these records. Finally, the Veteran has not been provided a VA examination to assess whether his low back disorder and lumbar radiculopathy with right foot drop are related to service. The file contains evidence of a current disability, as well as the Veteran's testimony that he was kicked down a flight of stairs during service and was put on bed rest for a period of time thereafter, which the Veteran asserts has led to his low back disabilities. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As there is insufficient evidence to decide the case, he should be examined so that a medical opinion can be obtained. Any recent VA treatment records should also be obtained. 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. Make arrangements to obtain updated treatment records from Loma Linda, Las Vegas, Reno, Pahrump, and Prescott VA medical centers and outpatient clinics. 2. Make arrangements to obtain the Veteran's treatment records from the T.W.A. Medical Department in Los Angeles, CA, dated in January 1954. -3- 3. Make arrangements to obtain a complete copy of the Veteran's service treatment records. If they are unavailable, make a formal finding and notify the Veteran in accordance with regulations. 4. Obtain from the SSA a copy of any decision regarding the Veteran's claim for disability benefits in 1988, as well as copies of all medical records underlying that determination. 5. Following completion of the above, schedule the Veteran for an appropriate VA examination. The claims file and a copy of this REMAND should be provided to and reviewed by the examiner. All necessary tests and studies should be performed. Although requested to fully review the entire claims file, attention is called to the following: a. The Veteran had active duty service from February 1948 to January 1953. He is considered competent to attest to his own personal experiences, and is therefore competent to provide information on being kicked down the stairs during service. He further is competent to describe the care he was provided after the injury. The examiner is asked to consider any lay statements that he makes during the examination, and is specifically requested to ask the Veteran about the incident in service and if he recalls what, if any, diagnoses were made following the injury. b. A post-service August 1987 radiologic report showed degenerative changes in the lumbar spine. -4- c. In April 1988, the Veteran's right foot drop was attributed to radiculopathy secondary to herniated nucleus pulposus. d. A June 15, 1988, VA treatment records notes a 35- year history of low back pain radiating into the right foot. The examiner(s) must: a. Identify all current low back disorders found to be present. b. Provide an opinion as to whether it is at least as likely as not (50 % or greater probability) that any current low back disorder and/or lumbar radiculopathy with right foot drop had its clinical onset during active service or is related to any in-service disease, event, or injury, to include the incident when the Veteran was kicked down the stairs. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 6. After the VA examination has been completed, the report should be reviewed to ensure that it is in compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 7. Finally, readjudicate the claims on appeal. If they are not granted to the Veteran's satisfaction, send him and his -5- representative a supplemental statement of the case (SSOC) and give them an opportunity to respond before returning the file to the Board for further appellate consideration of the claim. The Veteran has the right to submit additional evidence and argument on the 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). P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals -6-