Citation Nr: 1325848 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-16 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a low back disability, to include degenerative joint disease. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from July 1993 to October 1998 and from January 2003 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. 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 Remand is required as the Veteran's entire service treatment records from his first period of active service (i.e. from July 1993 to October 1998) appear not to have been associated with the claims file. The Board notes that the Veteran's June 1993 entrance examination was contained in a copy of the Veteran's personnel file that was associated with the claims file and several service treatment records, primarily diagnostic test results, were associated in May 2008. However, it appears that the records are incomplete. As such, remand is required to afford the RO/AMC the opportunity to obtain those records. Based on the information and documents received, an addendum to the March 2011 VA examination report may be indicated, as the examiner specifically noted the lack of extensive medical records from the Veteran's first period of active service. Accordingly, the case is REMANDED for the following action: 1. Using the Veteran's service number from his first period of active service, the RO/AMC should request through the appropriate channels a complete copy of the Veteran's service treatment records from his first period of active service (i.e. from July 20, 1993 to October 29, 1998). All efforts to obtain these records must be documented in the claims file. If identified records are not ultimately obtained, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). The Veteran should also be informed that he can submit alternate evidence to supplement the available service treatment records. See M21-1MR, Part III, Subpart iii, Chapter 2, Section E.27.b. 2. Obtain all VA medical records pertaining to the Veteran that date from March 2011. 3. If additional service treatment records and/or information from the Veteran are obtained, obtain a supplemental opinion from the examiner who conducted the March 2011 examination or another appropriate medical professional. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims file must be made available to and reviewed by the reviewer/examiner. The reviewer/examiner is asked to provide an opinion regarding whether it is as least as likely as not (50 percent probability or more) that any currently diagnosed low back disability, to include degenerative joint disease of the lumbosacral spine, was caused by or otherwise related to any incident of the Veteran's military service. In this regard, the Veteran asserted in an August 2010 statement that he had chronic back pain while on active duty from 1993 to 1998. In providing the opinion, the examiner/reviewer's attention is directed to any additional service treatment records or other records obtained since the time of the March 2011 examination. It would be helpful if the examiner/reviewer would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner/reviewer should provide a complete rationale for any opinion provided. 4. After the above is complete, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned 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). _________________________________________________ S. S. TOTH 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).