Citation Nr: 1756825	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  14-11 692	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for an upper and lower back disability.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Sean Raymond, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1980 to March 1984.

This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Veteran testified before the undersigned at a March 2016 Board video conference hearing.  A hearing transcript 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

VA has a duty to assist claimants in obtaining evidence to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017).  This includes making as many requests as necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration.  38 C.F.R. § 3.159(c)(2).  

Under the medical history section of a June 2013 VA examination report, the examiner noted, I reviewed the VA treatment records which showed no back or joint complaints since 2001 until 2009.  The examiner further noted that the Veteran underwent spinal surgery in 2009 and 2010.  Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file, and must be obtained.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  

Aside from an isolated July 2010 surgery admission note, and a 2009 MRI report superimposed into the June 2013 VA examination report, the record contains no VA treatment records pertaining to the Veterans back disability prior to May 2013.  See December 2014 CAPRI records in Legacy Content Manager.  Consequently, since the June 2013 examiner indicated that he reviewed VA treatment records that first noted back problems as of 2009, as well as injuries and surgeries in 2009 and 2010, VA must obtain any outstanding treatment records from January 2009 until May 2013.  

At the March 2016 Board hearing, the Veteran's representative stated the Veteran collected Social Security disability benefits.  When queried as to whether such benefits were for the Veterans back, the Veteran responded, "I'm assuming for my whole body."  The undersigned left the record open for sixty days to allow the Veteran the opportunity to submit Social Security records relevant to this appeal, as the case might otherwise require a remand for such records.  No such records were subsequently received.  As the Veteran testified that he is in receipt of Social Security disability benefits for his entire body, the record indicates that the Social Security Administration may possess records relevant to the Veterans claim for service connection for an upper and lower back disability.

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the claims file any outstanding, pertinent VA medical records, to include those created from January 1, 2009 to May 2013.  If such records cannot be obtained, associate negative responses and reasons with the claims file.

2. Obtain and associate with the claims file any records in the possession of the Social Security Administration pertinent to the Veterans award of Social Security disability benefits.  If such records cannot be obtained, associate negative responses and reasons with the claims file.

3. After completing the above and any other development deemed necessary, readjudicate the appeal.  If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board.

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. §§ 5109B, 7112 (2012).




_________________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans Appeals

Under 38 U.S.C. § 7252 (2012), 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).