Citation Nr: 1340277 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 07-30 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The appellant served with the United States Army Reserves from 1979 to 1991 with various periods of active duty for training (ACDUTRA) from June 1979 to September 1979, July 1984 to August 1984 and March 1987. This matter comes to the Board of Veterans' Appeals on appeal from a rating decision dated in October 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The appellant testified at a video hearing before the undersigned Veterans Law Judge in October 2008. A transcript of the hearing is associated with the claims file. The Board denied the appellant's claim of entitlement to service connection for a back disability in a December 2008 decision. The appellant appealed the Board's December 2008 decision to the United States Court of Appeals for Veterans Claims (Court). The Court vacated the December 2008 Board decision and remanded the claim to the Board for action consistent with the judgment. The Board remanded this issue in May 2011 for further evidentiary development. The RO continued the denial of the claim as reflected in the July 2013 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. 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. REMAND The appellant was provided with a VA examination and opinion in September 2011 with respect to whether the appellant's low back disability is related to a low back injury during active military service. The examiner determined that it was less likely as not that the appellant's current back condition is related to service. He explained that the appellant provided no documentation of treatment for almost 15 years after discharge from military service. The Board notes that the appellant contends that he has had recurrent low back pain since he injured his back in July 1984 during ACDUTRA and he reinjured his back in March 1987 during ACDUTRA. The Board has determined that the appellant's lay statements and testimony in support of his claim are credible as the appellant's statements are internally consistent. The appellant explained that he did not seek treatment for his recurrent low back pain for many years because he could not be seen by the VA for this problem. The examiner did not address the credible lay statements of recurrent low back pain as part of his or her rationale. Furthermore, the examiner did not discuss the article on lumbar spine stenosis submitted by the appellant in March 2011. A discussion of this article by the examiner would be of considerable assistance to the Board in adjudicating the claim. Accordingly, the appellant should be provided with another VA examination and opinion to consider the credible lay statements of the appellant as to continuity of symptomatology since the back injuries during ACDUTRA and the article. Furthermore, the Board notes that the appellant has indicates that he receives treatment for his low back disability from a private physician. Private treatment records from 2004 through 2006 are associated with the claims file. The appellant also submitted in March 2011 a private treatment record dated in February 2011. It appears that relevant private treatment records with respect to the appellant's low back disability may not be in the claims file. Thus, the RO/AMC should attempt to obtain any outstanding private treatment records. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the appellant and to elicit from him the appropriate consent to obtain any outstanding private treatment records from 2006 to the present. If VA secures the proper consent from the appellant, then attempt to obtain any treatment records related to the Veteran's low back disability and associate them with the Veteran's VA claims folder. 2. After completing the foregoing and associating any outstanding evidence with the claims file, schedule the Veteran for a VA examination to evaluate the Veteran's service connection claim for a low back disability. The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether the Veteran's degenerative disc disease with herniation, degeneration joint disease of the lumbosacral and lower lumbar apophyseal joints, lumbar spondylosis and any other back disability found on examination are at least as likely as not (i.e., a fifty percent or greater probability) related to the Veteran's active military service to include the documented in-service injuries to the low back in July 1984 and March 1987. The examiner should provide a complete explanation for all conclusions reached. As part of his or her rationale, the examiner should discuss the Veteran's credible lay statements of continuity of recurrent back pain since military service and discuss the article on lumbar spine arthritis associated with the claims file. 3. Upon completion of the foregoing, readjudicate the Veteran's claim, based on a review of the entire evidentiary record. If the benefits sought on appeal remains denied, provide the Veteran and his attorney with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant 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). _________________________________________________ MILO H. HAWLEY 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).