Citation Nr: 1335120 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 08-01 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from November 1985 to September 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified during a hearing before the undersigned Veterans Law Judge in February 2010. A transcript of the hearing is of record. The Board remanded this matter in April 2010 and September 2011 for further evidentiary development. The RO continued the denial of the claim as reflected in the April 2012 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. 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 After a review of the record, the Board has determined that further development is necessary before it can adjudicate the issue on appeal. In this regard, the Veteran was provided with a VA examination in July 2010. The examiner provided a negative medical opinion. She explained that the Veteran had treatment for a back injury/lumbar spine injury while on active duty service in 1995. She noted that there was no further documented treatment for his lumbar spine condition until 2003 when he was working as a cable operator. The Board observes that the Veteran reported in July 1995 report of medical history form as part of his separation examination that he experienced recurrent back pain. He explained that that he has stiff lower back pain. The physician noted that the Veteran had a chronic stiff back for the past two years. Furthermore, the Veteran contends that he has had a continuity of back pain since military service. See October 2013 Post-Remand Brief. The examiner did not address the Veteran's lay statements of continuity of low back pain since active military service as part of her rationale. Based on the foregoing, the Board finds that the Veteran should be provided with another VA examination and opinion for his low back disability. The evidence of record indicates that the Veteran receives current treatment at the VA Medical Center (VAMC) in Hampton, Virginia. Any outstanding VA treatment should be associated with the claims file. Not only is this fulfilling the duty to assist, but all such records are constructively part of the record before the Board even when they are not actually contained in the record. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records from the VAMC in Hampton, Virginia. All efforts should be documented and appropriate procedures followed. 2. After the above has been completed and any outstanding evidence has been associated with the claims file, schedule the Veteran with a VA examination regarding his service connection claim for a back disorder. The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion on whether any low back disorder found on examination is at least as likely as not (i.e., a fifty percent or greater probability) related to the Veteran's active military service to include the documented in-service complaints. The examiner should explain the reasoning for his or her opinion including a description of the evidence relied upon and rejected in reaching the opinion. The examiner is also requested to address the Veteran's lay statements of a continuity of low back pain since active military service as part of his or her explanation. 3. Upon completion of the foregoing, readjudicate the Veteran's claim of entitlement to service connection for a back disability based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further 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). _________________________________________________ MILO H. HAWLEY 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).