Citation Nr: 1639836 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 11-32 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1992 to January 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this case in July 2015 to schedule the Veteran for a hearing. The Veteran testified at an April 2016 hearing before the Board; a transcript of this hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Remand is necessary to request additional records and obtain a VA medical examination addendum. At the April 2016 hearing, the Veteran testified that he went to the hospital at Moffett Field in 1993. A September 1993 service treatment record noted 6 weeks of low back pain following heavy lifting, but no hospital records or other records from initial back-pain treatment have been associated with the claims file. Thus, VA should attempt to locate these records on remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Similarly, during the April 2016 hearing, the Veteran reported private treatment immediately following his service with the reserves. The Veteran reported testified that he received treatment from Dr. S., an orthopedic surgeon in Maui, as well as treatment at G. Orthopedics. The Veteran should be given an opportunity to provide these records or authorize VA to obtain them. See 38 U.S.C.A. § 5103A(b) (West 2015). Finally, a VA medical examination addendum is necessary. The August 2010 VA examination incorrectly relied on the lack of multiple in-service medical records of back pain as rationale for its finding and failed to consider the Veteran's testimony that he experienced back pain throughout service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335-36 (Fed. Cir. 2006). Thus, an addendum is necessary to consider the Veteran's statements regarding in-service injury and recurrent symptoms. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim, to include treatment with the orthopedic surgeon Dr. S. as well as treatment at G. Orthopedics. Based on the Veteran's response, the AOJ must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All efforts to procure the records must be documented in the claims file. 2. Make all necessary efforts to obtain service treatment records pertaining to the Veteran's reported in-service hospitalization for back injury in 1993, to include contacting the National Personnel Records Center (NPRC) and requesting all records of inpatient hospitalization from the hospital in Moffett Field, California. All efforts to obtain the reported records must be documented in the claims file and any records received pursuant to this request must be associated with the claims file. If the AOJ determines that such records are unavailable or do not exist, a memorandum explaining the efforts undertaken to obtain them should be completed and added to the claims file. 3. Following completion of the above, return the claims file to the VA examiner who performed the August 2010 VA examination. If the examiner is not available, the claims file must be provided to another examiner with the appropriate expertise to render the requested opinion. After reviewing the entire record, including the Veteran's statements regarding recurring issues and spasms throughout service (see April 2016 hearing and September 2009 statement), the examiner should determine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's lumbar spine disorder is related to any incident of active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. A full rationale (i.e. basis) for all expressed opinions must be provided, preferably citing to evidence in the file supporting the responses and concluding opinions. 4. Readjudicate the claim on appeal. If the benefit sought on appeal is not granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. 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). _________________________________________________ MILO H. HAWLEY 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) (2015).