Citation Nr: 1604639 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 13-22 137A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1986 to December 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the North Little Rock, Arkansas Department of Veterans Affairs (VA) Regional Office (RO). [The Veteran also initiated appeals of denials of service connection for sciatic neuritis of both legs, degenerative arthritis of both knees, shortness of breath, a menstrual disability, miscarriage, breast pain, fatigue, and pelvic congestion syndrome, and an increased rating for hypertension with headaches. The record does not show that she perfected an appeal on those issues, and they have not been certified on appeal. Therefore, they are not before the Board.] In November 2015, a videoconference hearing was held before the undersigned; a transcript is in the record. In June 2015, the Veteran submitted additional medical evidence with a waiver of Agency of Original Jurisdiction (AOJ) initial RO consideration. The appeal is REMANDED to the AOJ. VA will notify the Veteran if action on her part is required. REMAND While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent her claim. On August 2010 VA joints examination, the Veteran denied any injury in service but alleged that her current back disability is related to service. The examiner noted an approximately 15 to 20 year lag time between her service and her present pain. He diagnosed lumbar spondylosis and opined that such was less likely related to the Veteran's service based on her delay in presentation and the lack of any specific injury during service. In an undated opinion (received by VA in June 2015), the Veteran's VA primary care physician opined that the Veteran's current back disability is most likely related to her service since her reports of chronic back pain date back to 1992 and her pain has "exacerbated off and on since then." The Board finds that the opinion offered on August 2010 VA joints examination is inadequate for rating purposes. The examiner's opinion (against the Veteran's claim) cites to a lack of a "specific event or injury" in service and the 15 to 20-year delay in presentation postservice. That reasoning fails to address her allegation that the low back disability resulted from the cumulative effect of strenuous duties in service, doers not acknowledge that the Veteran's service treatment records (STRs) show recurring back complaints extending over years in service (See September 1990, April 1992, and August 1992 STR), and fails to acknowledge her reports (in statements and sworn testimony) that shortly after service she was seen for back complaints by a private chiropractor, whose records are unavailable,. Another examination to ascertain the etiology of the Veteran's service in light of these observations is necessary. Furthermore possibly relevant and constructively of record medical evidence appears to be outstanding. In an undated (received in June 2015) letter the Veteran's VA primary care physician at the Little Rock VA Medical Center (VAMC) stated that she is "being seen" in the Primary Care Clinic for chronic backache. The most recent records from that VAMC in the record were secured in November 2012. In addition, in an April 2010 medical release authorization, the Veteran stated that she had received treatment (in part) for back pain at the Memphis, Tennessee VAMC in 1997 or 1998. A December 1997 record from that facility describes the Veteran's annual and Gulf War examination; but records of the reported treatment for back complaints are not in the record; any such records would have bearing on establishing postservice continuity of pertinent complaints. As the record does not clearly reflect what would be the earliest available records of private or VA treatment the Veteran has received for back complaints, she should be asked to identify such provider on remand. Accordingly, the case is REMANDED for the following: 1. The AOJ should also ask the Veteran to identify the provider(s) of all evaluations and treatment she has received for her back disability since her discharge from service (records of which are not already associated with the claims file or established to be unavailable), and to provide all releases necessary for VA to secure the complete clinical records of such treatment or evaluation. If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that ultimately it is her responsibility to ensure that private records are received. The AOJ should specifically secure for the record copies of the complete clinical records of all VA treatment the Veteran has received for her back disability, in particular records of treatment at the Memphis VAMC from 1997 to the present and updated records from the Little Rock VAMC. 2. Thereafter, the AOJ should arrange for an orthopedic examination of the Veteran to determine the likely etiology of her back disability. The entire record must be reviewed by the examiner in conjunction with the examination. Based on interview and examination of the Veteran and review of her record (and noting her allegations and descriptions of her duties in service (including in hearing testimony), her reports of continuity of complaints postservice, and her postservice occupation), the examiner should provide opinions that respond to the following: (a) Please identify (by diagnosis) each back disability entity found. (b) Please identify the likely etiology of each back disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that such was likely incurred in, or is directly related to, her service (to include as due to her duties as a cook in service)? The examiner should include rationale with all opinions. 3. The AOJ should then review the record and re-adjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and her representative opportunity to respond, and return this matter to the Board. The Veteran 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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) (2015).