Citation Nr: 1542652 Decision Date: 10/02/15 Archive Date: 10/13/15 DOCKET NO. 10-36 146A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a right hip disability. REPRESENTATION Appellant represented by: John E. Walus, Attorney at Law ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from February 1990 to February 1993. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The Detroit, Michigan RO currently has jurisdiction. The issue of entitlement to service connection for a low back disability has been recharacterized to comport with the evidence of record. In October 2013, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The appeal is REMANDED to the agency of original jurisdiction. VA will notify the Veteran if further action is required. REMAND The Veteran underwent VA examinations of his back and right hip in July 2014, as directed by the Board in its October 2013 remand. However, the examiner did not consider the Veteran's competent lay testimony regarding intermittent, yet consistent, back and right hip pain since his in-service injury. Rather, the examiner simply noted the absence of documented recurring back and hip pain in the Veteran's service treatment records and "immediate post military records." This is not adequate. See Buchannan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). Moreover, it is not in compliance with the remand instructions because the examiner did not consider the Veteran's competent lay testimony. Stegall v. West, 11 Vet. App. 268 (1998). A new VA examination is therefore necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In July 2013, the Veteran reported to a non-VA treatment provider that he is in receipt of disability benefits from the Social Security Administration (SSA) as a result of his back disability. He also reported having received treatment for his back and his right hip disabilities at the VA Medical Center (VAMC) in Detroit since 2000. The earliest relevant VA treatment records are dated July 2008. (Although some VA treatment records from 2002 are of record, they refer to treatment for a condition unrelated to the disabilities on appeal). The outstanding SSA and VA treatment records must be obtained upon remand. 38 C.F.R. § 3.159(c)(1); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from January 2000 to July 2008, and since February 2015. A search for retired and non-digital records must be accomplished. 2. Request from SSA all records associated with the Veteran's disability claim, including all disability determinations and all medical records considered in making those determinations. 3. Schedule the Veteran for a VA examination by an appropriate medical professional in order to determine the nature and etiology of the Veteran's back and right hip disabilities. The entire record must be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed back disability is related to the injuries to the Veteran's back that are documented in the service treatment records, or to any other aspect of his military service. The examiner is also to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed right hip disability is directly attributable to his in-service injury or any other aspect of military service, or, alternatively, whether it is a manifestation of his lumbar radiculopathy or other disease process. For purposes of this examination, the examiner is to accept as fact the Veteran's reports of intermittent, yet consistent, back and hip pain since his service, despite the absence of documentation of such symptoms in the medical evidence. The examiner must consider the Veteran's reports of continuous back and hip pain since service in reaching a conclusion. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Then, readjudicate the appeal. If any of the benefits sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These matters must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).