Citation Nr: 1337648 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 08-33 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a 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 C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from May 1983 to May 1988. This matter arises to the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that determined that new and material evidence had not been submitted to reopen a claim for service connection for lumbar degenerative disc disease. In October 2009, the Board found new and material evidence, reopened the service connection claim, and remanded it for further development. In October 2011 and in July 2013, the Board remanded the case for development. Unfortunately, additional development is necessary prior to adjudication. This appeal was processed using VA's paperless claims processing system. Accordingly, future consideration of this case should take into consideration the existence of the electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND Pursuant to recent Board remand instructions, the Veteran underwent a VA compensation examination in August 2013 to determine the etiology of his lumbar spine disability. The examiner noted that the Veteran was incarcerated in a Federal prison after active service. The examiner then based a negative nexus opinion, in part, on the fact that because prison treatment records were not in the file, it could not be ascertained whether there has been intercurrent causation after active service for the claimed low back disability. In October 2013, the Veteran's representative argued that because the VA examiner raised the issue of the content of prison medical records, VA's duty to assist includes making an attempt to obtain these prison treatment records. The Board agrees with the Veteran's representative. VA's duty to assist includes obtaining relevant treatment reports and evaluating and adjudicating the claim in light of the entire medical history. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Accordingly, the case is REMANDED to the AMC for the following action: 1. The AMC should obtain up-to-date relevant treatment reports and associate them with the claims file. 2. The AMC should attempt to obtain any relevant prison medical treatment report. The Veteran and his representative are asked to assist the AMC in any way requested in obtaining these records. 3. If any prison treatment record is located, or, if any other treatment report relevant to the etiology of any claimed back condition is located, the AMC should associate that report with the records and then arrange for the November 2011 VA examiner to offer an addendum medical opinion. If that examiner is not available, a qualified substitute may be used. The examiner is asked to do the following: I. Note a review of the claims files, including any recently received medical record, the Veteran's claims of parachuting during active service, running during active service, heavy lifting during active service, his assertions of continuity of symptoms dating back to active service, the congenitally narrow lumbar spinal canal, and of any additional medical evidence contained in Virtual VA. II. Offer an opinion addressing whether it is at least as likely as not (50 percent or greater probability) that the rigors of active service have caused or aggravated the non-congenital lumbar degenerative joint disease. If causation or aggravation are found unlikely to be related to active service, then the examiner is asked to address whether it is at least as likely as not that the congenital condition was subject to a superimposed injury during military service that resulted in disability apart from the congenital defect. The Veteran may be re-examined if necessary. 4. Following the above, the AMC should review all relevant evidence and re-adjudicate the service connection claim. If the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his representative should be afforded an opportunity to respond tbefore the case is returned to the Board. The Veteran 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). If an examination is scheduled, failure to report for a scheduled VA examination, without good cause, may have adverse consequences on this claim. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2012).