Citation Nr: 18158317 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-58 502A DATE: December 14, 2018 REMANDED Entitlement to service connection for back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1966 to April 1970. He had additional service with the Air Force Reserve and Air National Guard. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision. As for characterization of the issue on appeal, the Board points out that the agency of original jurisdiction (AOJ) initially denied service connection for back disability by way of a December 2011 rating decision. The Veteran was notified of the December 2011 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. The Veteran’s service treatment records were subsequently received and associated with his claims file. These records were not in VA’s possession at the time of the December 2011 decision. VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156 (c). The service treatment records received by VA following the December 2011 rating decision are relevant in this instance because they include evidence of back pain in service. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017), cert granted, sub nom., Kisor v. Wilkie, Docket No. 18-15 (Dec. 10, 2018) (accepting VA’s interpretation of the relevancy requirement of 38 C.F.R. § 3.156(c), i.e., that as used in § 3.156(c)(1), “relevant” means noncumulative and pertinent to the matter at issue in the case). As relevant service department records were associated with the claims file following the December 2011 decision, that decision is not final. Hence, the Board will adjudicate the back issue on appeal on a de novo basis. See Id. Entitlement to service connection for back disability is remanded. The Veteran contends that he has current back disability that was incurred in service. His service treatment records include references to back pain beginning in 1970, his medical records reflect that he experienced back pain as recently as September 2014, and his representative reported in a May 2017 statement that the claimed back disability has been present ever since service. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for back disability because no VA examiner has determined the nature of the Veteran’s claimed back disability or opined whether any such disability was incurred in service. Hence, an appropriate examination should be scheduled upon remand. See 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The Veteran reported on an October 2010 “Veteran’s Application for Compensation and/or Pension” form (VA Form 21-526) that he was receiving treatment for his claimed back disability from the VA Medical Center (VAMC) in Fresno California. In April 2015, the AOJ contacted this facility and requested the Veteran’s treatment records, but only records dated since January 2012 were requested. The VAMC responded that there were no such records in its possession and there are otherwise no VA treatment records in the claims file. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain any such outstanding records. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for back disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for back disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records from the VA Central California Health Care System for the period since April 1970; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current back disability. The examiner must opine whether any back disability experienced by the Veteran since approximately October 2010 at least as likely as not (1) began during active service; (2) manifested within one year after discharge from service (in the case of any currently diagnosed arthritis); or (3) is related to an in-service injury or disease, including the Veteran’s back pain documented in his service treatment records The examiner must provide reasons for each opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel