Citation Nr: 1803647 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-38 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran; His Wife ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1948 to May 1952 and February 1953 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction was subsequently transferred to the RO in Seattle, Washington. In December 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This appeal was processed using the Virtual VA paperless claims processing system. Any future consideration of the appeal should consider the electronic record. 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 Although the Board regrets additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2015). The record reflects that there may be outstanding VA and private records potentially relevant to the claim on appeal. In this regard, review of the record indicates the Veteran has been receiving significant treatment from the Rockwell Clinic for many years. Accordingly, reasonable efforts must be undertaken to obtain the missing private treatment records in accordance with VA's duty to assist under 38 C.F.R. § 3.159. See Massey v. Brown, 7 Vet. App. 204 (1994). As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VAMC in Spokane, Washington. However, only sporadic, incomplete records are associated with the file. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain from the Spokane VAMC all pertinent, outstanding records following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. In March 2014, the Veteran underwent a VA examination of his lumbar spine. Although the examiner diagnosed him with degenerative joint disease and s/p compression fracture of lumbar spine, the examiner provided a negative etiology opinion. However, considering the likelihood of missing VA and private treatment records, it appears the VA examiner did not have a complete record on which to base his report. Therefore, the VA examiner's opinion does not yet appear adequate to fully inform the Board's determination. Once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, a remand is necessary to acquire an adequate medical opinion as to the etiology of the Veteran's current lumbar spine disability. Furthermore, the Board also notes that the Veteran has asserted, through his representative, that the AOJ should have considered awarding service connection for his lumbar spine disability as secondary to his already service-connected right knee disability. See January 2015 Statement of Accredited Representative; see also Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000) (VA's duty to assist the Veteran in developing his claim attaches to the investigation of all possible in-service causes of that current disability). On remand, the VA examiner should also address whether the Veteran's current lumbar spine disability is secondary to his already service-connected right knee disability. 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. Obtain any outstanding VA treatment records and associate them with the claims file. 2. The AOJ must contact the Veteran and request that he identify any private treatment providers and complete release forms (VA Form 21-4142) authorizing VA to request copies of any private treatment record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file, to specifically include records from Rockwell Clinic. 3. After any additional treatment records are associated with the claims file, schedule the Veteran for a VA examination to determine the nature, onset and etiology of his lumbar spine disability. The record must be made available for review of the Veteran's pertinent medical history. All appropriate tests and studies should be performed, and all clinical findings must be reported in detail. The VA examiner is requested to address the following: Confirm a diagnosis of DJD and s/p compression fracture of lumbar spine. Is it is at least as likely as not (50 percent probability or greater) that the Veteran's lumbar spine disability had its onset during, or is otherwise related to, his active military service? Is it as least as likely as not (50 percent probability or greater) that the lumbar spine disability was (i) caused or (ii) aggravated (permanently worsened) by the Veteran's service-connected right knee disability? The examiner should note that this question requires two opinions: one for proximate causation and a second for aggravation. The term "aggravation" means a chronic worsening of a disability beyond its natural progression. If aggravation is found, then, to the extent possible, the examiner should attempt to establish a baseline level of severity for the lumbar spine disability. The examiner must set forth a complete rationale for the conclusions reached. If the examiner is unable to provide the requested opinions without resorting to speculation, the examiner should clearly so state and explain why this is so. 4. Thereafter, the AOJ must readjudicate the issues on appeal. If any benefit is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). _________________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).