Citation Nr: 1337762 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-11 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a back disability, to include degenerative joint disease and degenerative disc disease. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Sadia Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1979 to February 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the Veteran's claim for service connection for a back disability. The issue of entitlement to service connection for the Veteran's back disability is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Veteran contends that his current back disability is related to back pains he experienced during active military service while loading and unloading cargo as part of his service. See October 2008 Claim. An October 2009 rating decision determined that there was no evidence to support a relationship between the Veteran's in-service back pain and his current back disability as the Veteran failed to appear for a June 2009 VA examination. The Veteran was afforded a VA examination in January 2010 and the examiner opined that due to the lack of documentation of treatment for his back pain until 2009, the examiner could not resolve the issue of service connection without resorting to mere speculation. The Veteran submitted a June 2010 letter from Dr. D. H., his treating VA physician, who reported that based on his examination of the Veteran and his history of the back pain, "it is more likely than not that at least some of [the Veteran's] chronic back pain is related to injuries sustained during his military service." A VA addendum opinion was obtained in November 2011. The November 2011 VA opinion stated that it was less likely than not that the Veteran's current condition, with a new onset of a "foot drop," is due to or caused by military service and further stated that the Veteran's post-service career as a bricklayer is the most likely cause of his current back disability. An examination of the Veteran was not performed and the opinion did not include a discussion of the pertinent evidence of record, including the Veteran's lay statements and Dr. D. H.'s June 2010 letter and medical report. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001). Accordingly, a new examination is warranted. The record also reflects that the Veteran receives continuing treatment from the Asheville VAMC. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding records of VA treatment from the Asheville VAMC, check specifically for records from February 2011 to October 2011 and after June 2013. Associate them with the claims file. If no additional records are available, include documentation of the unavailability in the claims file. 2. Afford the Veteran an opportunity to submit any other information that is not evidenced by the current record. Provide the Veteran with the necessary authorizations for the release of any private treatment records not currently on file. Associate any available records with the claims file. Make at least two (2) attempts to obtain records from any private sources. If any records are unavailable, document the unavailability within the claims file and advise the Veteran so he can submit any copies in his possession. 3. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other lay or medical evidence from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed, of his in-service and post-service back symptoms. He should be provided an appropriate amount of time to submit this evidence. 4. After associating any pertinent, outstanding records with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature, onset and etiology of his back disability. The claims file should be made available to and reviewed by the examiner and all appropriate tests should be conducted. Thereafter, the examiner should diagnose all back disabilities found to be present. After acknowledging the Veteran's in-service treatment for back problems and the impressions offered by Dr. D. H. in June 2010 and the November 2011 VA examiner's opinion, the examiner must opine as to whether it is at least as likely as not that the Veteran's back disability had its onset in service or is related, at least in part, to his in-service back problems. All findings and conclusions should be set forth in a legible report. 5. Then readjudicate the claim. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran 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 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). _________________________________________________ STEVEN D. REISS 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).