Citation Nr: 1337990 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-18 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD U. Ifon, Associate Counsel INTRODUCTION The Veteran had verified active service in the United States Army from August 1976 to July 1979, from April 10, 1986 to June 17, 1986, from October 11, 1990 to May 22, 1991, and from December 23, 1991 to May 28, 1992, with intermittent periods of Reserve service. Service treatment records suggest membership in the Reserve into at least 2002. Further verification is needed. This appeal to the Board of Veterans' Appeals (Board) is from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. 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. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. REMAND The Veteran contends he is entitled to service connection for a back disability. A review of the claims file reveals that additional evidentiary development is necessary in order to address the merits of this matter. The evidence of record does not clearly state the dates of the Veteran's alleged back injuries. In a May 2003 statement, the Veteran asserted he injured his back in 1978 and again in 2000. In his July 2008 claim for compensation, the Veteran alleged he injured his back in September 1978, August 1999, and August 2001. The Veteran needs to clarify the month and year of each purported back injury during his military service. The claims file does not contain the Veteran's Social Security Administration (SSA) records. A June 2004 SSA Notice of Decision indicates the Veteran has been awarded disability benefits, at least in part due to chronic lower back pain. The Board notes that once VA is put on notice that the Veteran is in receipt of SSA benefits, VA has a duty to obtain the records associated with that decision. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). The RO needs to obtain the Veteran's SSA records in order to fulfill VA's duty to assist. 38 C.F.R. § 3.159. VA also needs to fulfill its duty to notify by informing the Veteran of the unavailable service records from his periods of reserve service. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992) (describing VA's heightened duty to assist where service records are unavailable). There is no record of such notification in the claims file. As noted above, service treatment records on file (albeit a limited number of records are available) suggest membership in the Reserve into at least 2002. These treatment records do not detail any periods of active duty or inactive duty for training. Without an injury during such period, the mere notation of a back problem in a service treatment record is of little probative value. Thus, any period of duty or training for which a back injury is reported would have to be verified. It is also noted that in 1999 he apparently sustained a back injury during civilian employment. In addition, a VA examination is also necessary. The record shows that the Veteran has a current diagnosis of low back pain. The record also indicates the Veteran was diagnosed with a herniated nucleus pulposus and degenerative disc disease. The Veteran has not yet been afforded a VA examination to determine the etiology of any current back disability. VA is obligated to provide an examination when the record indicates that a current disability or signs and symptoms of a current disability may be associated with active service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds that such an examination should be accomplished on remand. Inasmuch as the case is being remanded, any outstanding VA treatment records, to include Kansas City Community Based Outpatient Clinic (CBOC) and Leavenworth VA Medical Center (VAMC) records, should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Inform the Veteran of the unavailability of his service records from his period of Reserve service pursuant to 38 C.F.R. § 3.159(e) and provide him an opportunity to submit any records he has in his possession. He should also be requested to provide any information he has concerning any periods of active duty or inactive duty for training, including any orders that are in his possession. 2. Detail the beginning and ending dates of each period of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) and notate them in the claims file. 3. Ask the Veteran to confirm the month and year of his alleged back injuries during his military service. After receiving this information from the Veteran, confirm whether those dates fall under any period of active military service or reserve military service and notate them in the claims file. 4. Contact the SSA, request and obtain the Veteran's complete Social Security records, including all decisions and any medical records relied upon in making those decisions and associate them with the claims file. 5. Obtain all outstanding VA treatment records, to include Kansas City CBOC and Leavenworth VAMC records, dated since March 2010 and associate them with the claims file. 6. After the aforementioned development has been completed, schedule the Veteran for an appropriate VA examination with an appropriate medical professional. The examiner is requested to review all pertinent records associated with the claims file. The examiner is to diagnose all back pathology found to be present on examination, specifically ruling in or excluding a diagnosis of arthritis. Thereafter, as to each diagnosed disability, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability: (a) had its onset during the Veteran's period of active military service, or any period of reserve military service (i.e., ACDUTRA and INACDUTRA); (b) is related to the Veteran's active military service, or any period of reserve military service (i.e., ACDUTRA and INACDUTRA); (c) was permanently increased beyond its natural progression during any period of reserve military service (i.e., ACDUTRA and INACDUTRA). A complete explanation should be provided for all opinions and conclusions, to include a discussion of the Veteran's contentions, as well as any lay assertions or private medical opinions of record. If the examiner cannot respond without resorting to speculation, the examiner should explain why a response would be speculative. 7. Readjudicate the issue on appeal. If the benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response. 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). 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). _________________________________________________ MICHAEL D. LYON 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).