Citation Nr: 1752589 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-07 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for degenerative arthritis of the lumbar spine (back disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from November 1966 to October 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board notes that the Veteran testified before the undersigned Veterans Law Judge in November 2016. A transcript of that hearing has been 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 Unfortunately, due to reasons that follow, a remand is required. Although the Board regrets this delay, it is necessary to ensure the Veteran is afforded adequate claim development assistance. At the Board's November 2016 Board hearing he provided lay testimony regarding symptoms of ongoing back pain during and since active duty service. Specifically, the Veteran explained that his military occupational specialty (MOS) was heavy equipment repairman, but that when he transferred into the 101st Airborne unit, he served as a radio teletype operator. The Veteran reported that as part of his duties as a radio teletype operator, he carried heavy materials in the field with the artillery units and gunships. He carried all of his equipment in a rucksack, including the PRC-25, spare batteries, 14 rounds, 14 magazines, 2 bandoliers of ammunition, and a M16 rifle. The Veteran explained that quickly getting off helicopters and getting out of the way of other soldiers with that much equipment had a lot of impact. The Veteran also reported completing 13 parachute jumps during which he carried all of his basic load equipment, his reserve chute, a steel pipe, his boots, and a rifle carrying case. The Veteran explained that he did not seek medical treatment for intermittent back pain but that he used aspirin instead; he also stated that he did not realize he had ongoing problem when he separated from service. The Veteran stated that he first noticed he had back issues when he started working as a civilian, and that he sought chiropractic treatment. September 2011 private treatment records indicate that the Veteran reported ongoing back pain since 1970. The Veteran also reports that he felt that the VA low back examiner had not understood his active duty service duties with regard to heavy equipment. A VA examination and corresponding etiology opinion were provided in January 2013. The Veteran was diagnosed with lumbar strain. However, there are several private treatment records subsequently associated with the claims file that document facet degenerative changes of the lumbar spine and lumbar and sacral arthritis since September 2010. Additionally, the examiner provided a negative etiology opinion, but did not acknowledge the Veteran's lay statements with regard to his ongoing back pain symptoms during and after service, and it appears there may have been some confusion as to the nature of the Veteran's heavy equipment duties during active duty service. Moreover, the examiner did not get an opportunity to review the Veteran's additional lay testimony summarized above. As such, remand of this claim is required for procurement of an adequate VA examination and etiology opinion. As stated above, the Veteran also reported receiving chiropractic care for his low back condition at his November 2016 Board hearing. Additionally, a review of the record reveals that the Veteran submitted a release authorization for the procurement of private treatment records for his low back pain with Dr. S. C. from 1973 onwards. Although some of the Veteran's private treatment records with Dr. S. C. have been procured, these records were provided in response to a records request for treatment relevant to a diabetes mellitus, type II claim, and the earliest treatment records currently on file date only to 1995. Therefore, on remand the Veteran should be informed that that the earliest private treatment records with Dr. S. C. currently on file date only as far back as 1995, and provide him an opportunity to either submit additional treatment records, or provided additional release authorizations for VA to procure those records on his behalf. Finally, as a review of the record reveals that the Veteran is currently receiving medical treatment for his low back through VA, any relevant outstanding treatment records should also be procured. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records relevant to the condition on appeal and associate those records with the claims file. Efforts to obtain these records should be documented in the claims file. If these records cannot be located the Veteran must be notified. 2. Contact the Veteran and inform him that private treatment records from Dr. S. C. associated with the claims file date only as far back as 1995. Additionally, provide the Veteran with a release form for any outstanding private medical or chiropractor records pertinent to his low back claim. If he returns the requested information, attempt to obtain the records. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. After completing #1-#2, schedule the Veteran for an examination with an appropriate clinician for his low back claim. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner is asked to diagnose any current low back conditions. Then, for each diagnosed low back condition the examiner must provide the following etiology opinion: i. whether it is at least as likely as not (50 percent or greater probability) that any diagnosed low back condition: (1) began during active service; (2) is related to an incident of service to include the Veteran's active service duties carrying heavy equipment and getting into and out of helicopters as a radio teletype operator, and completing parachute jumps; or (3) began within one year after discharge from active service. In this regard the examiner should address the Veteran's November 2016 Board hearing testimony and private treatment records documenting a report of low back pain ongoing from 1970. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 4. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. After undertaking any necessary additional development, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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). _________________________________________________ Nathaniel J. Doan 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) (2017).