Citation Nr: 1329514 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-05 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty for training from August to December 1988, and on active duty from September 1990 to May 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA." The issue of entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder, with depressive disorder, from March 24, 2011 to March 17, 2013 has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction. Therefore, the Board does not have jurisdiction over it, and it is referred to the for appropriate action. The appeal is REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, DC. REMAND The Veteran contends that service connection is warranted for a back disorder. He argues that residuals of a pre- service back injury were aggravated during active service in Saudi Arabia. A remand is required in this case to ensure there is a complete record upon which to decide the issue on appeal. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002). In this regard, on a February 1988 Applicant Medical Prescreening Form, DA Form 2246, the Veteran marked "yes" for having or ever having had back trouble. He explained that he "went to hospital for one day, for a hit in the back from a football game." At service separation the Veteran reported in an April 1991 Report of Medical History that he was treated for two days at Southwest Hospital for a back injury in 1988. Physical examination in February 1988 revealed a clinically normal spine. At an April 1991 quadrennial examination the appellant reported a history of recurrent back pain. A physician's assistant noted that the appellant had a history of chronic low back pain that was aggravated while in Saudi Arabia. In February 2012, the Veteran informed the VA examiner that he had x-ray studies at Southwest General Hospital pursuant to his lower back injury while playing football in 1988 during high school. Review of the evidentiary record does not reveal private treatment records or x-ray reports of the back dated in 1988 from Southwest General Hospital. Further, VA outpatient treatment records (August 2008, October 2008, July 2009, and October 2009) indicate the Veteran brought a copy of a private sector magnetic resonance imaging (MRI) report pertaining to the back. The February 2012 VA compensation examiner also noted that the Veteran was seen in 2006 by a private physician and had a MRI after running and stepped in a pothole. Since VA has notice of outstanding private treatment records and diagnostic reports that are potentially relevant to this claim on appeal, there is a duty to obtain these records. Next, the Veteran informed the February 2012 VA examiner that x-rays were made at VA in 1992 and 1993; however, the examiner noted no studies are listed on the Veteran's electronic medical record. Review of the evidentiary record does not reveal VA outpatient treatment records, to include diagnostic imaging studies of the back, dated prior to 1995. VA records are within RO and the Board's constructive possession and must be considered in deciding this issue on appeal. Thus, there is a duty to obtain these records as well. Lastly, an additional VA medical opinion is necessary after review of any newly private and/or VA treatment records obtained and associated with the claims file. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The RO should arrange for the appellant's claims file, to include his Virtual VA file, to be reviewed by the VA physician who conducted the February 2012 VA spine examination and prepared an opinion that month. If the February 2012 VA examiner is not available, an addendum prepared by a orthopedic physician must be secured. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and ask him to identify any pertinent private treatment records and diagnostic reports pertaining to his back, to specifically include from 2006. Obtain the necessary authorization from the Veteran to obtain the outstanding 1988 private treatment records and diagnostic reports from Southwest General Hospital, and any other private treatment physicians and/or facilities identified by the Veteran. All efforts to obtain such records should be fully documented, and a negative response must be provided if records are not available. If the requested information is unavailable, the Veteran and his representative should be apprised of such and given the opportunity to submit the requested information. 2. Obtain and associate with the claims file all outstanding VA outpatient treatment records, to include diagnostic reports, pertaining to the back prior to 1995. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO 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 claims. The claimant must then be given an opportunity to respond. 3. If newly associated treatment records are obtained and associated with the claims file, then furnish the entire claims file to the VA physician who prepared the February 2012 VA medical opinion. The VA physician must review and consider all pertinent evidence of record and prepare an addendum addressing whether or not the opinion he rendered in February 2012 has changed in light of the newly associated evidence of record. The examiner must specifically consider the April 1991 remark by a in-service physician's assistant that the appellant's back disorder was aggravated in Saudi Arabia. If, and only if, the February 2012 VA physician is unavailable, furnish the entire claims file to a VA orthopedist for review. After a review of all the pertinent evidence of record, the physician is to opine whether the Veteran's current back disorder clearly and unmistakably exist prior to service? a) If so, is there clear and unmistakable evidence that it was not aggravated beyond its natural progression by an in-service injury, event, or illness. b) If not, is it at least as likely as not, i.e., is there a 50/50 chance, that any diagnosed back disorder had its onset in service or worsened while on active duty in 1990 and 1991? Again, in rendering any opinions, the examiner must discuss the April 1991 service separation examination report and April 1991 Report of Medical History which note the Veteran's spine as abnormal and complaints during active service in Saudi Arabia. A well reasoned rationale must be given for all opinions and conclusions expressed. The examiner should identify the evidence that supports all opinions offered. If an opinion cannot be rendered without resorting to speculation, the VA physician should explain why it would be speculative to respond. 4. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case, to include additional VCAA notice that provides the type of evidence necessary to establish a disability rating and effective date, and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ DEREK R. BROWN 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).