Citation Nr: 1648364 Decision Date: 12/29/16 Archive Date: 01/06/17 DOCKET NO. 13-03 254A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for chronic lumbosacral strain with mild degenerative arthritis L5/S1. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran requested a BVA Travel Board Hearing in the February 2013 VA Form 9. Subsequently, the Veteran withdrew his hearing request in July 2013. The issue of an increased rating for tinnitus has been raised by the record in a February 2015 statement, 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) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends in his October 2010 claim that his back disability started in May 1978, while in service. The Veteran's service treatment records did not show a back injury, disease, or disability during military service, but the Veteran noted back trouble during the discharge examination in September 1978. The RO requested a VA examination for the Veteran to examine his lower back strain. The VA examiner determined the Veteran had a chronic lumbosacral strain disability with mild degenerative arthritis of L5/S1, but provided a negative nexus opinion finding that it was less likely than not that the Veteran's disability was caused or aggravated by the Veteran's active service. The VA examiner's rationale was based upon the absence of medical clinic notes during active duty and the Veteran's history of seeking treatment for back problems at Wishard Hospital in 1982. However, the VA examiner did not address or explain the Veteran's lay testimony that he has experienced back pain and problems since service, the Veteran's discharge examination showing complaints of back trouble, or the post-service records showing treatment for back problems, in the rationale. The Board finds that the opinion is not adequate, as it did not provide an explanation as to why the Veteran's reports of back problems in service were not sufficient to support a positive nexus opinion. In that regard, post-service treatment records are conflicting as to the etiology of the Veteran's back disability. In July 1989, the Veteran denied any physical problems upon leaving service, stating that he injured his back more recently placing landscaping ties. But, in June 2001, the Veteran reported having had back pain since 1989 when he was in service (though the Board notes that he separated from service in 1978). Records also show that the Veteran injured his back in November 1999 when he fell from a truck. In November 2000, he reported that he had had back trouble for five years. In light of the post-service reported history of back trouble, a new VA examination should be obtained that takes such evidence into account. In order to properly adjudicate this appeal, a factually accurate, fully articulated, and soundly reasoned medical opinion is needed. As such, further development is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); 38 C.F. R. § 3.159(c)(4). Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify all private medical providers from whom he has received treatment for back related issues. After securing the necessary releases, take all appropriate action to obtain those records. If the Veteran is receiving regular VA treatment, obtain the updated medical records and associate them with the claims file. 2. Return the claims file and a copy of this remand to the examiner of the March 2011 VA examination, or another qualified medical professional if the examiner is unavailable to provide a medical opinion on the etiology of any diagnosed back disabilities. The examiner is to offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any identified low back disability had its onset during, or is otherwise related to, active service. The examiner should specifically comment on the Veteran's September 1978 discharge examination showing a report of back trouble; as well as the post-service treatment records showing a history of back pain and back injuries, to include the June 2001 record located in his Social Security Administration records documenting his report of back pain "since 1989 when in service" (though he separated from service in 1978), and the Veteran's report of back pain since service. The examination report must include a complete rationale for all opinions expressed. 3. After the requested records review and opinion are completed, the report should be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the reviewing personnel. 4. After undertaking any other development deemed appropriate, the RO will readjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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 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). _________________________________________________ A. C. MACKENZIE 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) (2016).