Citation Nr: 1332503 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-05 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection a thoracic spine disability, to include as due to lumbar and cervical degenerative disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from February 1989 to June 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the above claimed benefits. The Veteran provided testimony during an informal conference with a Decision Review Officer (DRO) at the RO in October 2009. A report from the conference is of record. He provided testimony during a hearing before the undersigned Veterans Law Judge at the RO in June 2013. A transcript is of record. 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 A January 2010 letter from a private physician stated that he treated the Veteran 61 times between 1999 to 2003 for lumbar and thoracic sprains. Records from this physician have not yet been obtained. VA has a duty to obtain relevant records of private treatment. 38 U.S.C.A. § 5103A(b) (West 2002); Massey v. Brown, 7 Vet. App. 204 (1994). These records are relevant to the appeal and efforts to obtain them should be conducted following the procedures under 38 C.F.R. § 3.159 (2013). In addition, the February 2013 supplemental statement of the case (SSOC) noted review of an August 2012 VA examination addendum. That addendum is not included in the paper or virtual claims files. Clearly this evidence is relevant to the claim. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In addition to this addendum, the Board requests that this opportunity is taken to obtain records of ongoing VA treatment, including those created since February 2012, the last treatment of record. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service includes credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran was provided a VA examination in August 2008. However, direct service connection was not addressed (as the RO did not request the opinion) and the opinion provided regarding proximate service connection was not accompanied with a rationale. The Board notes that the Veteran is currently diagnosed with post-operative residuals of a herniated thoracic disc, T7, T8, and T9 levels. Service treatment records demonstrate that the Veteran complained of mid-back pain once during service and that he served as a parachute jumper. Post-service, there is evidence that he received treatment for thoracic spine sprains beginning in 1999, about seven years post-discharge, and complained of generalized pain throughout his spine. There is also evidence of post-service back injuries. Based on the foregoing, the Board finds that a new VA examination is warranted. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide releases authorizing VA to obtain all records of treatment with the private physician who provided the January 2010 letter noted above. If the Veteran fails to complete necessary authorizations, tell him that he may obtain and submit the records himself. If any records cannot be obtained, inform the Veteran of this fact, tell him what efforts were made to obtain the records, and advise him of any additional development that will be undertaken. 2. Obtain all outstanding VA medical records, including those created beginning in February 2012 and the August 2012 VA examination addendum, and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 3. Once the above development has been completed, provide the Veteran with a VA examination with a qualified doctor to determine whether any current thoracic spine disability is directly related to service or proximately related to the service-connected lumbar and cervical spine disabilities. 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 is requested to list all current thoracic spine disabilities. The examiner should then provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current thoracic spine disability, to include post-operative residuals of herniated thoracic disc, had onset in service or is otherwise related to a disease or injury in service, including in-service complaints of mid-back pain or his many parachute jumps. To the extent possible, (likely, unlikely, at least as likely as not) the examiner should also opine whether the Veteran's thoracic spine disability(s) was either (a) proximately caused by or (b) proximately aggravated by his service-connected lumbar or cervical spine disabilities. If the examiner states the claimed thoracic spine disability is aggravated by lumbar or cervical spine disabilities, although not directly caused by either of them, the examiner should indicate the degree of additional impairment caused by them beyond the natural progress of the disease prior to the impairment, in terms conforming to the rating schedule. The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 4. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 5. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 2002 & Supp. 2012). _________________________________________________ J. A. MARKEY 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) (2013).