Citation Nr: 1806580 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 16-08 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability, claimed as herniated nucleus pulposus, L4-5. 2. Entitlement to service connection for a left lower extremity disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from January 1959 to May 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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 appellant if further action is required. REMAND Although the Veteran has not submitted evidence indicative of a current medical diagnosis of a back disability and a left lower extremity disability, the VA Form 21-526EZ is ambiguous as to whether the Veteran sought treatment from a VA Medical Center. The Board observes that no effort was made to obtain all relevant records in the possession of a Federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The use of the Fully Developed Claim process does not diminish the duty to assist the Veteran. VA records are considered to be constructively of record and VA is charged with knowledge of their contents, the records must be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). Likewise, the Veteran has not been provided with VA examinations related to his application to reopen the claim of service connection for a back disability and the claim of entitlement to service connection for a left lower extremity disability. The Veteran claims that his back disability was caused by his service and a left lower extremity disability is secondary to his back disability. Thus, if VA treatment records reflect a diagnosis of a back disability and a left lower extremity disability, the Board finds that the Veteran should be afforded VA examinations regarding these claims for service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d)(1); 38 C.F.R. § 3.159 (c)(4). 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. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issues on appeal, to include lay statements from individuals that have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service symptoms associated with his back disability and a left lower extremity disability. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claim file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Following the above development and if and only if diagnoses of a back disability and a left lower extremity disability are shown, the Veteran must be afforded a VA examination(s) to determine whether a back disability and a left lower extremity disability are related to the Veteran's military service. The claim file must be made available to the examiner for review. If the examiner finds that any previously or currently diagnosed back disability preexisted service, the examiner must determine whether the back disability increased in severity beyond the normal progression during active military service. If the examiner determines that any previously or currently diagnosed back disability did not preexist the Veteran's military service, the examiner must provide an opinion as to whether any and all currently or previously diagnosed back disability, are related his military service. The examiner is to offer an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any left lower extremity disability had its onset during or is otherwise related to active service. The examiner must also provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the current left lower extremity disability is caused or aggravated by his back disability. The term "aggravated" in the above context refers to a worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ E.I. VELEZ 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).