Citation Nr: 1335463 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-30 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from January 1980 to December 1983. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which, in pertinent part, denied the Veteran's claims of entitlement to service connection for left toe and low back disorders. The RO in Providence, Rhode Island, currently has jurisdiction of the claims file. By a July 2012 rating decision of a Decision Review officer (DRO) at the RO in Providence, Rhode Island, service connection for a left toe disorder was granted. Thus, the RO's action represents a full grant of the benefit sought as to that claim and the Board will confine its consideration to the issue set forth on the decision title page. In May 2013, the Veteran testified before the undersigned Veterans Law Judge, seated at the RO in Providence, Rhode Island. A transcript of the hearing has been associated with the claims file. 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 The most recent VA treatment records in the claims file, considering both the physical claims file and Virtual VA, are dated in December 2010. There is no evidence that the Veteran has ceased VA treatment. As such, a request for updated VA treatment records must be made. During the Veteran's Board hearing, he asserted that he had been unsuccessful in obtaining his private treatment records. It does not appear that the Veteran has authorized VA to attempt to obtain such records on his behalf. As such, the Veteran should be provided an opportunity to do so. Of record is a report of VA examination dated in January 2011 wherein the examiner opined that the Veteran's current low back disorder is not the same back condition for which he was treated during service and his current back symptoms are related to his post-service occupational back injury. However, the examiner did not have the opportunity to consider the Veteran's lay statements, provided during his Board hearing, that he had continuous back symptoms from the time of his December 1980 in-service motorcycle accident, after which he was treated for a contusion of the low back, until the present. In essence, he asserts that he had existing back symptoms at the time of his post-service occupational back injury. Further, the examiner diagnosed the Veteran with back pain with a neurological component. There is no evidence that any diagnostic tests, including X-ray examination, were conducted. The Veteran's VA treatment records include notations of herniated disc and degenerative disease of the lumbar spine. Also, the Veteran's service treatment records reflecting treatment for the December 1980 in-service motorcycle accident include a notation of scoliosis by X-ray examination. Additional examination and comment is thus required. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's treatment records maintained by the VA Medical Center (VAMC) in Providence, Rhode Island, dated from December 2010 to the present. If a negative response is received from any VA facility, the Veteran must be duly notified and provided an opportunity to submit such records. 2. Contact the Veteran and advise him that VA may attempt to obtain his private treatment records on his behalf. Request that he file VA Forms 21-4142, Authorization and Consent to Release Information to the VA, for any relevant outstanding private treatment records. Advise him that he may submit such directly to VA if he so chooses. Attempt to obtain and associate with the claims file any identified private treatment records. If a negative response is received from the Veteran, or any treatment facility, the claims file should be properly documented in this regard. 3. Then, schedule the Veteran for a VA examination with an appropriate examiner. Considering any additional evidence added to the claims file, and results of current physical examination, including any diagnostic tests, the examiner should opine as to the following: (a) Whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's low back disorder was incurred in service, or is otherwise related to service; specifically, to his December 1980 in-service motorcycle accident and resultant contusion. In this regard, the examiner should specifically cite all low back diagnoses. (b) Whether the Veteran's scoliosis found by X-ray examination during service in December 1980 constitutes a congenital disease or defect, as defined by VAOPGCPREC 82-90 (generally, a congenital abnormality that is subject to improvement or deterioration is considered a disease). (b) If the Veteran's scoliosis constitutes a congenital disease, whether it is at least as likely as not (at least 50 percent probability) that it was aggravated by service, or any aspect thereof, including the December 1980 in-service motor vehicle accident and resultant contusion. (c) If the Veteran's scoliosis constitutes a congenital defect, whether it is at least as likely as not (at least 50 percent probability) that there was additional disability due to disease or injury superimposed upon such defect during service, or any aspect thereof, including the December 1980 in-service motor vehicle accident and resultant contusion. In this regard, even if there is no new evidence added to the claims file, the examiner must specifically comment upon the Veteran's statements regarding his in-service low back symptoms, as well as his statements as to continuous low back symptoms since separation from service. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The claims file, including a copy of this Remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the examiner cannot answer the above questions without resorting to mere speculation, the examiner should state why this is so. 4. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim, considering any additional evidence added to the record. If the action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. 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). (CONTINUED ON THE NEXT PAGE) 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). _________________________________________________ S.L. Kennedy 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).