Citation Nr: 1334992 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 06-12 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1991 to August 1996. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision in March 2005 by a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2013, the Veteran failed to report for a Board hearing. Records in the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed and considered. 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. The issue of service connection for hypertension has been raised by the record in the October 2013 brief from the Veteran's representative, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. REMAND The Board finds that the January 2005 VA examiner's opinion is inadequate because the examiner failed to provide a discussion regarding whether the Veteran's current low back disability is related to service. Under the duty to assist, a new VA examination is necessary to determine whether the Veteran's current low back disability is related to his in-service back injury. Prior to arranging the VA examination requested above, the Veteran's assistance should be obtained to ensure that copies of any outstanding records of pertinent medical treatment are identified and added to the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination, with an appropriate examiner, to determine the nature and etiology of his current low back disability. The claims folder must be made available to the examiner, and the examiner must review the entire claims file in conjunction with the examination. The opinion should address whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the Veteran's current low back disability is related to his active duty service. Opinions should be provided based on the results of the examination, a review of the evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. For purposes of the opinion being sought, the examiner should specifically note the Veteran's July 1994 service treatment record documenting an in-service injury to his lower back, when a center pole from a tent fell on him, and the August 1995 service treatment record documenting an in-service injury to his lower back while playing flag football. If the examiner cannot provide an opinion, the examiner must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. After the development has been completed, adjudicate the claim. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case 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). _________________________________________________ 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) (2013).