Citation Nr: 1325814 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-21 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for degenerative disc disease, thoracolumbar spine, claimed as a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active service from April 1971 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before a hearing officer at the RO in October 2011; a transcript is included in the claims file. 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 suffered a work-place spinal injury in 2004; however, he has asserts he initially hurt his back in a blast injury while in Vietnam in January 1973. Service treatment records, to include complaints of back pain in October 1973, have been obtained by the RO, but the records do not include any treatment dated during his time in Vietnam. An April 2012 appeal deferral noted that the RO needed a Personnel Information Exchange System (PIES) request for any clinical records for treatment of the lower back condition for the period January 1, 2973 to March 14, 1973 in Saigon. The Veteran was contacted and could not give specific information as to where he was treated in Saigon. It seems a PIES request was not made due to the missing information and there is no indication that a formal finding of unavailability was issued. Service personnel records indicate the Veteran was in Vietnam from August 1972 to February 1973. In this case, the Board finds VA has not exhausted all efforts to locate potentially relevant records in this case and the Veteran has not been properly notified regarding VA's inability to obtain records. In cases where VA is unable to obtain records, or if after continued efforts to obtain Federal records VA concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA is to provide the claimant oral or written notice of that fact. 38 C.F.R. § 3.159(e) (2012). Notice must contain the identity of the records VA was unable to obtain; an explanation of the efforts VA made to obtain the records; a description of any further action VA will take regarding the claim including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and notice that the claimant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1)(i)-(iv) (2012); see also M21-1MR, Part I, Chapter 1, Section C, (5): 'Requesting Federal Records.' Additionally, the Board notes that the Veteran was given a VA examination in October 2008 to determine the nature and etiology of the Veteran's claimed back disorder. Although the VA examiner reviewed associated VA treatment records and Social Security Administration disability records, it is unclear whether the claims file, at that time, included a March 1980 VA progress note in which the Veteran complained of a 10 year history of mid-thoracic pain and a history of back injury in Vietnam. To ensure an adequate opinion is rendered upon review of all available medical records and examination of the Veteran, the Board finds another VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's any service treatment records pertaining to the period from January 1, 2973, to March 14, 1973, from all appropriate records repositories, to include a submitting a PIES request by using the Veteran's unit information available in his service personnel records. If the RO/AMC cannot locate any records requested above, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain these records would be futile (i.e., a memorandum of formal finding of unavailability). The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. After the above have been completed, schedule the Veteran for a VA examination to determine whether any lumbar spine disability is caused or aggravated by an in-service disease or injury, including the reported blast injury. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should determine whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lumbar spine disability had its onset in service or had its onset in the year immediately following service (in the case of any current arthritis). The examiner should specifically address the Veteran's in-service back complaints as well as the March 1980 VA treatment record. The examiner must provide a rationale for any opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for a back disability in service cannot, standing alone, serve as the basis for a negative opinion. 3. Thereafter, the RO/AMC should perform any additional development necessary, and then readjudicate the Veteran's claim for service connection for degenerative disc disease, thoracolumbar spine. If the claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claim should be returned to the Board for further review, if in order. 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).