Citation Nr: 1340787 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 12-35 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1979 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening the Veteran's claim of service connection for a lumbar spine disorder due to new and material evidence not being received. The Veteran timely appealed that decision. As an initial matter, the Board has recharacterized the issue on appeal as an initial claim of service connection in light of the Veteran's submission of copies of hospital treatment in January 1980 in Germany following a motor vehicle accident. Those records demonstrate that the Veteran complained of low back pain following that accident; thus, the Board considers them to be relevant to the Veteran's lumbar spine claim on appeal. The Board has reviewed the service treatment records which were of record at the time of the initial May 1987 denial, and these newly-submitted hospital records from the Veteran's period of service were not contained in those records. Accordingly, as such records are deemed to be relevant to the claim on appeal, and were not of record at the time of the previous denial in May 1987, the Board finds that a de novo review of the lumbar spine claim is appropriate at this time. See 38 C.F.R. § 3.156(c) (2013). Thus, the Board has recharacterized the claim on appeal in order to reflect this change in the disposition of the claim, which no longer requires the submission of new and material evidence as an initial threshold matter in this case. 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 In this case, the Veteran underwent a VA examination of his lumbar spine in October 2010, at which time he was diagnosed with degenerative disc disease (DDD) of the lumbar spine. The examiner, however, opined-after noting the Veteran's lay statements that he was in a 1980 motor vehicle accident during service-that the Veteran's claimed lumbar spine disorder was less likely related to service because the [b]ack x-ray found in 1986 in [the claims] file notes some degenerative changes in the L-3 disc only. Unable to find documentation of back injury in [service medical records] except for a profile for no lifting over 15 [pounds], crawling, or stooping for a low back pain due to muscle strain. The Board notes that the Veteran submitted service treatment record copies demonstrating reported back pain associated with treatment for his motor vehicle accident in 1980; his other service treatment records additionally note mechanical back pain and other reports of back pain, particularly in close proximity to the noted January 1980 motor vehicle accident. This information must be considered by an examiner rendering an opinion on the etiology of current back disability. On remand, the RO/AMC should attempt to obtain any outstanding service treatment and personnel records, including any hospital treatment records from January 1980 in Germany, which are not currently in the claims file. Also, any ongoing private and VA treatment records should be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain through official sources any of the Veteran's service treatment and personnel records that are not currently associated with the claims file, to include any January 1980 hospital treatment records from Germany. If any further records cannot be obtained and further attempts would be futile, such should be noted in the claims file with a memorandum of unavailability and the Veteran should be notified thereof. 2. Obtain any relevant VA treatment records from the Temple, Houston or Central Arkansas VA Medical Centers, or any other VA medical facility that may have treated the Veteran, which have not already been obtained, including any ongoing treatment with those facilities since October 2012, and associate those documents with the claims file. 3. Schedule the Veteran for a VA examination with a physician in order to determine the nature and etiology of his lumbar spine disorder. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary, including x-rays, should be conducted, and the results reported in the record. After examination and review of the claims file, the examiner must specifically indicate any lumbar spine disorders found, to include any DDD or other arthritic conditions thereof. For each lumbar spine disorder found, including DDD of the lumbar spine, the examiner should indicate whether it was more likely, less likely, or at least as likely as not (50 percent or greater probability) caused by or related to his active service, to include the January 1980 motor vehicle accident in service. The examiner should discuss the service treatment records in the claims file which demonstrate complaints of back pain associated with treatment for the January 1980 motor vehicle accident in service, as well as the Veteran's lay statements in the claims file regarding incurrence of his claimed lumbar spine disorder and the continuity of symptomatology both during and after discharge from service. The examiner should additionally address the 1986 VA examination and its findings, as well as the May 1986 findings from Dr. S.D.R., and findings in the October 2012 VA examination report. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of service connection for a lumbar spine disorder. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto 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 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). _________________________________________________ THOMAS J. DANNAHER 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).