Citation Nr: 1752780 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-27 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION The Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION The Veteran had active service from April 1972 to April 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified at a September 2013 Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In December 2014, the Board denied service connection for a low back disability. The Veteran timely appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a June 2016 Memorandum Decision, the Court vacated the Board's December 2014 decision and remanded the matter for adjudication consistent with the Court's decision. The Court was particularly concerned with the April 2012 VA examination, which it found inadequate due to its reliance on an inaccurate factual premise and failure to appropriately consider the Veteran's lay statements. In April 2017, the Board remanded the matter to obtain updated VA treatment records and a new VA examination to rectify the issues set forth in the June 2016 Memorandum Decision. VA treatment records from May 2008 until April 2017 were associated with the electronic claims file. In May 2017, the Veteran was afforded a VA examination. Unfortunately, the VA examiner's opinion did not sufficiently address the Veteran's lay contentions regarding the severity of his 1974 in-service back injury, his chiropractic treatment in the late 1970s, or his complaints of back pain and resulting time off from work over the years. Instead, the examiner simply concluded that the "Veteran's back pain is not related to a back injury in the service since Veteran was without back pain for 26 years." In essence, the May 2017 VA examiner's opinion is tainted by the same flaws upon which the Court deemed the April 2012 VA examiner's opinion to be inadequate. Accordingly, the Board finds an additional remand is necessary for an addendum medical opinion to adequately address the considerations raised in the Board's April 2017 remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (a veteran is entitled to compliance with the Board's past remand directives). In addition, the Veteran reported to the May 2017 VA examiner that his low back is primarily treated by rheumatologist, Dr. H.M.; yet, these treatment records have never been submitted for consideration in adjudicating the Veteran's claim. The Court has held that when reference is made to pertinent private medical records, VA is on notice of their existence and has a duty to assist the Veteran in developing the claim by attempting to obtain the referenced private medical records. Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). As such, the RO must attempt to obtain these private treatment records on remand. 38 C.F.R. § 3.159(c)(1) (2016). Finally, the electronic claims file must be supplemented with updated VA treatment records from the Southeast Louisiana Veterans Healthcare System, April 2017 to present. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the Southeast Louisiana Veterans Healthcare System, April 2017 to present, and associate the records with the electronic claims file. 2. After obtaining the proper authorization from the Veteran, obtain all private treatment records from Dr. H.M. The AOJ should make at least two (2) attempts to obtain such records. If the AOJ concludes the records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. THEN, ONLY AFTER THE ABOVE VA AND PRIVATE RECORDS ARE OBTAINED, TO THE EXTENT POSSIBLE, the electronic claims file should be returned to the examiner who issued the May 2017 medical opinion for an addendum opinion. If this examiner is no longer available, then the claims file must be forwarded to another appropriate VA medical professional. After a complete review of the entire claims file, including this remand, the VA examiner is requested to opine on the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed low back disability began in or is otherwise etiologically related to his military service, to include his May 1974 in-service back injury. In his/her examination report, the examiner is requested to specifically address the Veteran's lay statements and testimony that (1) his May 1974 in-service back injury resulted in three to four days of total bed rest; (2) he treated with a chiropractor in the late 1970s for low back pain; (3) his post service employment was "more moderate" and sedentary than his job in the Navy; and (4) his current back disability has resulted in occasional time off of work due to pain. The examiner should provide a full rationale for any opinion expressed. In forming an opinion, the examiner is cautioned against relying on the approximately 30 year absence of post-service complaints of or treatment for a low back disability, as such a rationale is insufficient to satisfy this remand. 4. Then, readjudicate the claim on appeal. If the benefit sough remains denied, issue a supplemental statement of the case and return the case to the Board for further appellate review. The Veteran 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 that are remanded by the Board or 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). _________________________________________________ MICHELLE L. KANE 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).