Citation Nr: 1333190 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-15 308 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from February 6, 1996 to December 4, 2006. In September 2007, VA determined that the Veteran's period of active service from February 6, 1996, to February 5, 1999, was honorable for purposes of VA compensation and his period of service from February 6, 1999, to December 4, 2006, was dishonorable for purposes of VA compensation and a statutory bar to VA benefits for this time period. See generally 38 C.F.R. §§ 3.12(c)(2), 3.13(c) (2013). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied a claim of service connection for a low back disability (which was characterized as low back pain). Because the Veteran currently lives within the jurisdiction of the RO in Nashville, Tennessee, that facility retains jurisdiction in this appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that he incurred a back disability during active service between February 6, 1996, to February 5, 1999 (his only period of honorable service for VA purposes). Having reviewed the record evidence, the Board finds that additional development is required before this claim can be adjudicated on the merits. A review of the Veteran's claims file shows that he was convicted of several serious criminal offenses following a general courts-martial in December 2004. Following his conviction, the Veteran was incarcerated at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas. The Veteran's conviction was affirmed on appeal in July 2006. He received a dishonorable discharge in December 2006 while incarcerated. He remained under military control until April 2010 when he was granted parole and released from incarceration. While incarcerated, the Veteran had a VA examination for his claimed low back disability in March 2007. A review of this examination report shows he was diagnosed as having chronic low back pain. Unfortunately, the VA examiner who conducted this examination did not provide an opinion regarding the contended etiological relationship between the Veteran's low back disability and active service. The Court has held that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the March 2007 VA examination is inadequate for adjudication purposes. Given the foregoing, the Board also finds that, on remand, the Veteran should be scheduled for appropriate examination to determine the nature and etiology of his low back disability. The Board finally notes that the RO contacted the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, in November 2007 and requested "all" of the Veteran's treatment records. Unfortunately, this facility responded in April 2008 only with copies of the Veteran's treatment records dated during his dishonorable period of active service from February 6, 1999, to December 4, 2006. In response to a request for the Veteran's service treatment records, VA's Records Management Center (RMC) notified the RO in March 2010 that it had no records for the Veteran. The RO subsequently concluded later in March 2010 that the Veteran's service treatment records for his honorable period of active service between February 6, 1996, and February 5, 1999, were not available. Because this claim is being remanded for additional development, and because it is not clear whether the Veteran's service treatment records for his honorable period of active service between February 6, 1996, and February 5, 1999, were transferred to the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, at the time of his incarceration there in December 2004, the Board finds that, on remand, the RO/AMC should undertake additional development in order to attempt to obtain these records. Accordingly, the case is REMANDED for the following action: 1. Contact the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, or other appropriate Federal records repository, and request the Veteran's complete service treatment records from his period of active service between February 6, 1996, and February 5, 1999. Advise the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, that these records may have been transferred to this facility at the time of the Veteran's incarceration in December 2004. A copy of any request(s) sent to the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, or other appropriate Federal records repository, and any reply, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for appropriate examination to determine the nature and etiology of his low back disability. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a low back disability, if diagnosed, is related to a period of active service between February 6, 1996, and February 5, 1999, or any incident of such service. The examiner is advised that the Veteran contends that he incurred a low back disability during a period of active service between February 6, 1996, and February 5, 1999. The examiner also is advised that service treatment records dated after February 6, 1999, must not be considered in any review of the claims file. The examiner also is advised that the lack of in-service complaints of or treatment for a low back disability is not persuasive evidence that it did not occur during a period of active service between February 6, 1996, and February 5, 1999. 3. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, 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. 2013). _________________________________________________ WAYNE M. BRAEUER 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).