Citation Nr: 1340137 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 12-12 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service-connection for a low back disability. REPRESENTATION Appellant represented by: John R. Worman, Attorney ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1981 to September 1981 and May 1982 to November 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the June 2010 decision by the St. Petersburg, Florida, Regional Office (RO) of the United States Department of Veteran Affairs (VA), which denied service connection for a low back disability. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure complete review of the evidence of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Upon preliminary review of the evidence of record, the Board finds that the Veteran's case must be remanded for further development. On behalf of the Veteran in a letter dated October 9, 2012, the Veteran's attorney submitted an alternative theory of entitlement based on secondary service connection. He contends the Veteran's low back disability has been caused by his current service-connected disabilities (residual trauma right wrist, mild traumatic brain injury, cervical spondylosis/chronic cervical strain and post-traumatic headaches associated with traumatic brain injury). In light of the new theory of entitlement, the Board finds additional development is needed. The Veteran has not received notice of what is needed to substantiate the secondary service connection theory of entitlement (or of his/VA's respective responsibilities in evidentiary development of this theory of entitlement), and the RO has not addressed this theory of entitlement in the first instance. The June 2010 rating decision on appeal denied service connection for a low back disability on a direct basis only, with no consideration of secondary service connection. The Board notes the Veteran has asserted a new theory of entitlement but it remains the same claim of a low back disability. See Roebuck v. Nicholson, 20 Vet. App. 307 (2006) (although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim). The Board thus finds that a further VA opinion is needed to address the new theory of secondary service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further notes updated Social Security Administration (SSA) records were received in July 2012 after the March 2012 VA examination. Therefore, the March 2012 VA opinion was based upon an incomplete review of the record. The Board thus finds that an additional VA opinion is needed to address the etiology of the Veteran's low back condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The record references an examination from September 2012 with an October 2012 addendum. The procurement of such pertinent VA medical reports is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). An attempt should be made to associate these records with the Veteran's claims folder. Accordingly, the case is REMANDED for the following action: 1. The RO should provide the Veteran with 38 C.F.R. § 3.159(b) notice for a claim of service connection for such disability on a secondary basis (specifically as secondary to the Veteran's service-connected disabilities). He should have adequate opportunity to respond. The RO should arrange for any further development suggested, including securing for association with the claims file copies of the complete clinical records (those not already associated with the claims file) of all VA treatment the Veteran has received for his low back disability. 2. Associate the September 2012 VA examination and October 2012 addendum with the claims file. 3. After any development deemed necessary is completed, the RO should then return the claims file to the March 2012 VA examiner to determine the etiology of his low back disability on a direct or secondary basis. If the examiner determines that an additional examination is necessary, or if the March 2012 VA examiner is unavailable, an examination to address the below questions should be scheduled. The Veteran's claims file (including this remand) must be reviewed by the examiner. Based on a review of the claims file including updated treatment, SSA records and private treatment records the examiner must provide the following opinions: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's low back disability, is etiologically related to his active service or caused or permanently worsened (aggravated) by his service-connected disabilities. The examiner should reconcile any opinion with all other clinical evidence of record. A complete rationale should be provided for any opinion expressed. 4. Then, the claim for service connection of a low back disability must be readjudicated, including on a secondary service connection basis. If the benefit remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise 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.2013). _________________________________________________ A. C. MACKENZIE Acting 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).