Citation Nr: 1801023 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 11- 24 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for back disability with leg sciatica. 2. Entitlement to service connection for hepatitis. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1969 and from January 1991 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied service connection for back disability and hepatitis. This claim was previously before the Board. At that time, the Veteran had filed a notice of disagreement with the July 2009 rating decision, but there was no statement of the case (SOC) issued. For this reason, the Board remanded the claim in April 2010. Since that time, SOC has been issued and the Veteran has timely perfected his appeal. The Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge (VLJ) in April 2017 and transcript of the 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 Board regrets further delay, but additional development is necessary to decide the claim. Review of the record shows that the Veteran was not provided a VA examination with respect to his back disability and hepatitis. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c) (4) (2017). Review of the record indicates that there is sufficient evidence of record for this duty to assist to attach. For this reason, a remand for an examination is warranted. Furthermore, during the hearing, the Veteran's representative has identified relevant private medical records that are not part of the record. Therefore, upon remand, RO should take the necessary steps to obtain the identified medical records. Accordingly, the case is REMANDED for the following action: 1. Update VA medical records. 2. Take the necessary steps to obtain private medical records identified by the Veteran pertaining to his claimed back disability and hepatitis. Documentation of this activity, including any response provided by the Veteran and medical care provider must be added to the record. 3. After completion of directives #1 and #2, schedule the Veteran for a VA examination to determine the etiology of his back disability. The Veteran's claims file must be made available to the examiner for review. The examiner must take a complete history from the Veteran. All indicated tests and studies should be completed. The examiner should review the claims file in its entirety and provide an opinion answering the following question: Is the Veteran's back disability at least as likely as not (a 50 percent or greater probability) etiologically related to the Veteran's active military service? A complete rationale should be provided for all opinions. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is the case. 4. After completion of directive #1 and #2, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran's hepatitis. The Veteran's claims file must be made available to the examiner for review. The examiner must take a complete history from the Veteran. All indicated tests and studies should be completed. Following the completion of the examination, the examiner should provide an opinion answering the following question: Is the Veteran's hepatitis (to include any residuals of previously diagnosed hepatitis) at least as likely as not (50 percent or greater probability) etiologically related to his military service? The examiner's opinion must address the Veteran's lay statement regarding his exposure to hepatitis, as well as his service treatment record and his medical records post military service. A complete rationale should be provided for all opinions. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is the case. 5. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 6. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case to him and his representative and allow the applicable time for response. Then, return the case 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). _________________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).