Citation Nr: 1800884 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 16-03 294 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to May 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Jurisdiction was subsequently transferred to the RO in Seattle, Washington. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Upon review of the claims file, the Board believes that additional development on the claim on appeal is warranted. The Veteran contends that he initially injured his back in service in Korea. He reported that he was air lifted to Seoul, and subsequently transferred to a MASH (Mobile Army Surgical Hospital) for x-ray and treatment of his back. He has indicated continued back pain since this initial injury. The Veteran's service treatment records have not been obtained. The National Personnel Record Center (NPRC) informed the RO that the Veteran's service treatment records were likely destroyed in a fire. The Court of Appeals for Veterans Claims has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Following service, a May 1972 from Skagit Valley Hospital reflects a history of low back pain beginning in November 1971, which he developed during a particular turning maneuver. At that time, he was assessed with probable prolapsed L4-5 lumbar disc. In an accompanying statement, the Veteran reported that this treatment was the result of dealing with low back problems for 20 years. The Veteran submitted a back conditions disability benefits questionnaire dated in October 2013, wherein a physician noted a history of back pain starting in 1952 during deployment in Korea, when the Veteran fell into a creek while crossing. The examiner diagnosed back pain and multilevel degenerative disc disease and facet joint disease. Given the foregoing, and with the Board's heightened duties in this case, the Board finds that an examination with medical opinion-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-would be helpful in resolving the claim for service connection. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In addition, there are outstanding records in this case. The physician who completed the disability benefits questionnaire, Dr. P., indicated that there were prior MRI and treatment records. On remand, efforts to obtain treatment records from Dr. P. should be undertaken. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Assist the Veteran with obtaining all outstanding treatment records pertaining to the claim on appeal, including VA treatment records. The AOJ should take appropriate steps to send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal, to specifically include additional treatment records from Dr. P. If the Veteran identifies any other pertinent medical records that have not been obtained, the AOJ should undertake appropriate development to obtain copies of those records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed low back disability. Any indicated tests should be accomplished. The examiner should review the record prior to examination. The examiner should identify whether the Veteran has a low back disability. Then the examiner should indicate whether any diagnosed disorder at least at likely has not had its onset in or is otherwise related to service, to include the reports of treatment for back injury and pain therein. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 3. The AOJ should undertake any additional development deemed warranted. 4. Then, the AOJ should readjudicate the Veteran's claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. 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 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). _________________________________________________ A. S. CARACCIOLO 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).