Citation Nr: 1802195 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-19 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to July 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In August 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND During the August 2016 hearing, the Veteran testified that he injured his back when he fell down a ladder on a ship in 1971. He also stated that he injured his back during a motor vehicle accident in Guam during the summer of 1972. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a back disorder; however, he has reported that he sought treatment at the naval hospital in Guam following the motor vehicle accident. Although the Veteran and his representative have been unable to obtain any medical records from such treatment, it does not appear that VA has made any attempt to search for the clinical records. Therefore, the Board finds that the AOJ should attempt to obtain any clinical records pertaining to such treatment. In addition, the Veteran testified at the August 2016 hearing that he first started treatment with a private physician in Long Beach, California, in 1979, before beginning treatment through Kaiser Permanente in 1991 or1992. However, the claims file does not contain any medical records pertaining to his back that date back to 1979, and the claims file only appears to include treatment records from Kaiser Permanente dated from 1999 to 2014. Thus, on remand, the AOJ should request any outstanding medical records. The Board further notes that the Veteran has not been afforded a VA examination in connection with his claim. Although his service treatment records are negative for any documentation of a back injury or disorder, he has provided lay statements attesting to injuries in service. The post-service medical records also document a current lumbar spine disorder. Moreover, he has submitted a medical opinion from his private doctor stating that his low back pain since 1972 is at least as likely as not caused by his in-service injuries. See May 2014 private treatment records from Dr. S.S. (initials used to protect privacy). Nevertheless, the private physician did not address the evidence of record or provide any rationale. Therefore, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any lumbar spine disorder that may be present. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a back disorder that are not already of record. A specific request should be made for authorization to obtain records from the physician in Long Beach, California, who treated him in 1979, as well as any records from Kaiser Permanente dating back to 1991 or 1992 and dated since 2014. See August 2016 hearing transcript. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records dated since 2009. 2. The AOJ should attempt to any clinical records from the naval hospital in Guam pertaining to treatment for his back in the summer of 1972. As set forth in 38 U.S.C. § 5103A(c) and 38 C.F.R. § 3.159(c)(2), the AOJ should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. All efforts to obtain such records should be documented. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any lumbar spine disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, lay statements, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that any current lumbar spine disorder manifested in or is otherwise related to the Veteran's naval service, including any injury or symptomatology therein. In so doing, the examiner should address the lay statements that he injured his back when he fell down a ladder on a ship in 1971 and during a motor vehicle accident in the summer of 1972. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (2017), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 6. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ J.W. ZISSIMOS 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).