Citation Nr: 1510076 Decision Date: 03/11/15 Archive Date: 03/24/15 DOCKET NO. 12-11 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disorder, to include as secondary to service-connected right knee chondromalacia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty for training from May 1979 to August 1979 and on active duty from May 1981 to June 1983. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In December 2013, the Veteran testified at a videoconference hearing at the RO before the undersigned. A copy of the transcript of that hearing is of record. The record was held open for a period of 60 days to afford the Veteran an opportunity to submit additional records. No additional records were received. The record before the Board consists of the Veteran's paper claims files and electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The issue of entitlement to an evaluation in excess of 10 percent for right knee chondromalacia has been raised by the record during the Veteran's December 2013 Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran seeks to reopen a previously denied claim for entitlement to service connection for a back disorder, to include as secondary to service-connected right knee chondromalacia. Before the Board can adjudicate this claim on the merits, additional development is required. In written statements of record and during his December 2013 Board hearing, the Veteran has asserted that he has a current low back disorder that was either caused or aggravated by his service-connected right knee disability. Specifically, he has stated that altered gait from his service-connected right knee disability affected his back, causing back pain for many years. He further reported that a January 2003 injury at work to his back was caused by a fall after his knees buckled. He indicated that his service-connected right knee disability caused instability, which led to buckling of his knees at work while lifting a heavy object. The Veteran contends that the resulting fall caused his current, claimed back disorder. Evidence of record reflects that the Veteran has received VA medical treatment for his claimed back disorder from the VA Medical Center (VAMC) in Memphis, Tennessee, as well as from the Memphis North VA Outpatient Clinic (VAOPC) in Covington, Tennessee. However, as the record only includes treatment records from those providers dated up to June 2013, any additional records from those facilities should be obtained. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In addition, during his December 2013 Board hearing, the Veteran reported that the physician who treated him in the emergency room after his January 2003 work injury informed him that his knee condition caused the fall that damaged his back. As evidence of record only contained discharge instructions and a prescription form from a physician identified as Dr. Johnson at the emergency room at St. Mary Medical Center on January 26, 2003, as well as subsequent Occupational Health Work Status Sheets dated throughout 2003, all additional identified private treatment records should be obtained and associated with the record. 38 C.F.R. § 3.159(c). Finally, an attempt should also be made to obtain all documents associated with the Worker's Compensation claim filed in connection with the Veteran's January 2003 occupational low back injury with Indiana Worker's Compensation Board. Accordingly, the case is REMANDED for the following actions: 1. The AOJ must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim that has not already been associated with the record. Regardless of the Veteran's response, the RO must obtain: 1) All VA treatment records pertaining to the Veteran's claimed back disorder from Memphis North VAOPC and Memphis VAMC for the period from June 2013 to the present. 2) All private treatment records pertaining to the Veteran's work injury from the emergency room at St. Mary Medical Center in January 2003. 3) All documents, procedural and medical, associated with the Worker's Compensation claim filed with Indiana Worker's Compensation Board in connection with the Veteran's January 2003 occupational low back injury. All attempts to secure this evidence must be documented in the record by the AOJ. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the AOJ must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the AOJ is unable to secure any of the identified records, the AOJ must notify the Veteran and his representative and (a) identify the information the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain that information; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. Then, the AOJ should readjudicate the issue on appeal with consideration of all of the evidence added to the record since the November 2012 SSOC. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate SSOC and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. 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 2014). _________________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).