Citation Nr: 1753466	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  11-28 981	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a low back disorder.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Cheng, Associate Counsel







INTRODUCTION

The appellant served on active duty from September 1964 to September 1966. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

This issue was remanded by the Board in April 2016 for further development.  After returning to the the Board for adjudication, the Board denied the Veteran's claim of entitlement to service connection for a low back disorder in January 2017.  The appellant then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC).  In an August 2017 Joint Motion for Partial Remand, CAVC vacated the Board's decision, finding that remand was warranted because the Board erred in finding that VA had fulfilled its duty to assist the appellant.  Specifically, CAVC found that the Board's rationale in finding that VA had satisfied its duty to assist concerning the appellant's workers' compensation claims and surgical records for his back was deficient because the Board failed to discuss or consider VA's responsibility in securing those records, considering the Board recognized the record may be relevant to the appellant's claim.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

As noted above, there are additional records that may be pertinent to the appellant's claim.  Specifically, in a May 2016 VA examination, the appellant reported that he filed workers' compensation claims for his back disability and that he had undergone surgery for his spine around 1978.  The Board also notes a July 2016 statement from the appellant that he was issued a back brace from his primary care doctor after he was discharged from active service and that he had back surgery in 1978 and in 2006.  A review of the claims file does not show these records have been associated with the claims file or any requests to VA for such specific records of workers' compensation claims had been conducted.  

The Board notes that although the April 2016 Board decision had remanded the matter, in part, to obtain any outstanding VA and private records pertinent to his claim, to include any treatment records related to a previous back surgery, there nevertheless appears to be additional pertinent records not associated with the claims file.  Moreover, in an October 2017, the appellant requested this claim be sent back to AOJ for review of additional evidence.  As such, the Board will remand to obtain any additional VA or private treatment records and for AOJ consideration.

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should request the appellant identify all outstanding VA and private records pertinent to his claims, to include, but not limited to, records related to his workers' compensation claim, previous back surgeries, and issuance of a back brace subsequent to separation from active service.  If unsuccessful in obtaining any pertinent records identified by the appellant, the AOJ should notify the appellant of the missing documents and provide him an opportunity to submit copies of the outstanding medical records.

2.  Then, readjudicate the appeal.  If any decision is adverse to the appellant, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case to the Board.

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).



_________________________________________________
THOMAS H. O'SHAY
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).