Citation Nr: 1429652 Decision Date: 07/01/14 Archive Date: 07/10/14 DOCKET NO. 10-11 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to June 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by a special expedited processing unit ("Tiger Team") of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Thereafter, the claims file was returned to the RO in Chicago, Illinois. In April 2014, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional evidence that has been considered by the RO in the most recent supplemental statement of the case (SSOC) dated September 2012. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Remand is required to afford the Veteran a VA examination which adequately addresses the relationship, if any, between the Veteran's current back disability and service. In May 2012, the Veteran underwent a VA examination to determine the etiology of his back disability. The examiner diagnosed the Veteran with lumbar strain, and opined that the current lumbar strain is less likely than not related to service because there is no evidence of continuity of care for the lumbar spine from service until the present. See the May 2012 VA examination report. The Board notes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). The basis of the examiner's opinion is inadequate because he does not appear to have considered the Veteran's lay statements regarding his continuous symptoms since service. See the November 2009 notice of disagreement (NOD). Thus, another examination is required. Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159(c)(4). Since the claim is being remanded, outstanding VA treatment records should be obtained as well. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his back disability. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder. A specific request should be made for VA treatment records from the Jesse Brown VA Medical Center (formerly known as the West Side VA Medical Center) in Chicago, Illinois, dated since August 2012. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. After all available records have been associated with the claims file and/or Virtual VA e-folder, afford the Veteran a VA examination to determine the etiology of his claimed back disability. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place must be included in the report of the examiner. As indicated above, the examiner must review the record in conjunction with rendering the requested opinion; however, the Board calls the examiner's attention to the following: * In April 1972, service treatment records note the Veteran visiting sick call after falling and injuring his mid-back two days ago. Physical examination testing reflected full range of motion with no deformities. He was assessed with a low back strain. * In September 1972, the Veteran returned to sick call with pain in his lower back radiating down to his leg. He reported pain when walking or running. X-rays revealed no significant abnormalities. * Upon discharge from service, clinical evaluation of the Veteran's spine was normal, as reflected on the June 1973 report of medical examination at separation. * After discharge from service, the Veteran visited his local VA facility in December 1981, with pain in his lower back for the last five days. He reported suffering from an injury to the lower back in 1976. * In a March 2010 VA outpatient treatment entry, the VA physician noted that the Veteran has chronic low back pain dating back to his military service in 1973. * In a November 2008 statement, a VA physician stated that the Veteran has endured chronic back pain since 1972. * The May 2012 VA examiner opined that the Veteran's current lumbar strain is less likely than not related to his military service. The examiner explained that upon review of the records, there is no evidence of continuity of care for the lumbar spine from service until the present. * At the April 2014 Board hearing, the Veteran testified that he injured his back during service in 1972. He explained that while stationed in Okinawa, Japan, he had to unload frozen meat by hand from a cold storage warehouse that had recently stopped working. While unloading the meat, the Veteran stated that his back went out, and since the incident, he has endured back pain daily. See also the November 2009 NOD. All indicated tests and studies must be performed. The examiner must provide diagnoses for any disabilities of the back. For each diagnosis rendered, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the back disability began during active service or is related to any incident of service, including the mid-back injury that required a visit to sick call in April 1972. The examiner must provide an opinion as to whether the disability began during active service or is related to any incident of service. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 3. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claim, considering all evidence of record. If the benefit sought remains denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). An appropriate period of time must be allowed for a response. 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). _________________________________________________ S. L. Kennedy 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).