Citation Nr: 1754471 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-34 197A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1982 to March 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In November 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded a VA examination in June 2012. The examiner provided a negative nexus opinion for the Veteran's current low back disability because the examiner found there were no records of back complaints until 2009, over twenty years after separation from service, at which time the provider noted the Veteran's back pain had been intermittent for one or two years. The Board finds this opinion to be inadequate because the examiner failed to consider the Veteran's lay evidence of continued symptomatology since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). During the November 2016 hearing, the Veteran testified that he continued to have issues with his back since falling during service and that he first sought treatment shortly after leaving service. On remand, this lay evidence of continuity of symptomatology since service must be addressed by a VA examiner. It also appears that private treatment records exist that have not been associated with the record before the Board. At the hearing, the Veteran testified that after separation from service he sought treatment from a private physician, a private chiropractor/acupuncturist, had surgery in 2010 to remove a cyst associated with his back injury, and had surgery from Dr. D. at the medical center in Johnson City, Tennessee in 2012. While the Veteran noted that records from his initial private physician were unavailable, there is no indication whether any attempt has been made to obtain the remaining records. Thus, on remand, the treatment providers should be identified and efforts made to obtain any available records. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for his back disability since service. After securing the necessary release, take all appropriate action to obtain these records, including records from his chiropractor/acupuncturist, the doctor who performed his 2010 surgery, and Dr. D. at the medical center in Johnson City, Tennessee. 2. After the completion of the above, schedule the Veteran for an appropriate examination to determine the current nature and likely etiology of any low back disability. Copies of all pertinent records should be made available to the examiner for review. Based on the record, the examiner should provide an opinion to the following: (a) Identify all diagnoses related to the back. (b) For each diagnosed back disability, it is at least as likely as not that the disability is related to the Veteran's service? The examiner is specifically requested to consider that the Veteran received treatment for a low back injury during service and his lay evidence of continuity of symptomatology ever since the injury. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 3. The AOJ should then review the record and re-adjudicate the claim. If the benefit remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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. §§ 5109B, 7112 (West 2014). _________________________________________________ M. E. LARKIN 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).