Citation Nr: 1337720 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-27 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a back disability. ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel REMAND The Veteran served on active duty from January 1969 to June 1971. 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 Boston, Massachusetts. (In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this virtual file were reviewed in conjunction with this appeal.) A review of the Veteran's claims file reveals that further development on the matter of entitlement to service connection for a back disability is warranted. First, the Board notes that the Veteran submitted two statements with his September 2011 VA Form 9, one a lay statement from someone who has known the Veteran since prior to the Veteran's military service, and one a medical statement from a chiropractor. The RO did not issue a supplemental statement of the case (SSOC). This was in contravention of 38 C.F.R. § 19.37. Accordingly, remand is necessary to properly comply with this provision via the issuance of a SSOC. Remand is also warranted so that the Veteran can be scheduled for a VA examination. The Veteran asserts that he injured his back in the Navy, and has had significant problems since his injury. In a statement dated in April 2009, the Veteran stated that his injury caused him to be put on light duty, and he was prescribed the painkiller Darvon. According to the Veteran, his pain continued to be severe enough despite his medication that he became ill from taking too many pills. The Veteran stated that he had no problems with his back prior to service. The Veteran also submitted a September 2011 statement from R.H., a friend. R.H. stated that he first met the Veteran prior to the Veteran's service in the Navy, and that afterwards they owned and operated an automobile repair shop together. R.H. writes that the Veteran told him how he injured his back in the Navy, and that the Veteran has had progressively worse back problems since he left the Navy. The Veteran also submitted a September 2011 letter from his chiropractor, Dr. T.G. Dr. T.G. states that he treats the Veteran for chronic degenerative low back pain, and that the Veteran injured his back while he was in the Navy. The Board has also reviewed the Veteran's service treatment records (STRs). They indicate that on April 23, 1970, the Veteran received treatment for low back pain, diagnosed as myofascial strain, lumbosacral spine. The STRs show that the Veteran was put on light duty and prescribed Darvon. VA must provide a medical examination when there is evidence of a current disability, evidence that an injury occurred in service, an indication that the Veteran's disability may be associated with his service, and insufficient competent medical evidence. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the record shows evidence of a current low back disability, as shown by the letter from Dr. T.G. The Veteran's STRs provide evidence that a low back injury occurred in service, and there is an indication that the Veteran's low back disability is associated with his service inasmuch as both the Veteran and R.H. have said that the Veteran has had back pain since service. There is also insufficient medical evidence. An examination is therefore necessary. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify any treatment providers for his back during and since service and to complete the necessary forms (VA Form 21-4142) for VA to obtain any non-VA records. After obtaining the necessary authorizations, request copies of any outstanding private records, to include Dr. T.G., and any outstanding service or VA treatment records. 2. All efforts to obtain the above-described records must be documented in the claims file. Such efforts shall continue until federal records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. Reasonable efforts are necessary for non-federal records. If any records cannot be obtained after appropriate efforts have been expended, the Veteran should be given proper notice and allowed an opportunity to provide such records. 3. Following completion of the above-requested actions, schedule a VA examination concerning the Veteran's back disability. The examination should include all necessary diagnostic testing or evaluation. The claims file, including a complete copy of this remand, must be made available for review. Based on review of the record and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not (probability of 50 percent or more) that a current back disability is attributable to the Veteran's military service? In responding to the above, the examiner should provide an explanation that takes into account all lay and medical evidence. The examiner should give medical reasons for accepting or rejecting the lay statements regarding the in-service injury and continued symptoms since service. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If the benefit sought is not granted, furnish a Supplemental Statement of the Case, which should include consideration of the statements included with the Veteran's VA Form 9, and afford the Veteran a reasonable opportunity to respond before the case is returned 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). This case 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).