Citation Nr: 1817862 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 14-08 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The Veteran had active military service from January 1995 to June 1995 and from October 2003 to April 2005. The matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, which determined that new and material evidence had not been received to reopen the claim of service connection for a lumbar spine disability. The claim also denied entitlement to a rating in excess of 30 percent for cardiomyopathy. In January 2016, the Board reopened the claim of service connection for a lumbar spine disability and remanded the claim for additional development. The Board also dismissed the issue of a higher rating for cardiomyopathy, as withdrawn. The Veteran and his wife testified before the undersigned at a Board hearing in August 2014. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran underwent a VA examination in February 2016. The VA examiner stated that he was unable to say with at least 50 percent or greater probability that the Veteran's current back condition is related to his in-service activity. The examiner explained that there was just not enough documentation in the medical records to make such connection. The February 2016 VA opinion does not show adequate consideration of the Veteran's lay testimony as to his in-service injuries, the Board has deemed such testimony credible in light of his combat service. Further, the opinion lacks a clear medical rational, as it relies solely on the absence of documentation to rule out a nexus. Thus, an adequate opinion is not of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). As noted in the Board's January 2016 remand, the Veteran testified that he received private treatment for his lumbar spine disability. VA sent a letter to the Veteran, asking him to identify the relevant treatment provider. A response was not received. In the interest of affording the Veteran every possible consideration and since his appeal is being remanded for a different reason, VA should again ask the Veteran for information regarding any outstanding private treatment records. Similarly, VA should obtain any outstanding VA treatment records. VA treatment records were last associated with the claims file in February 2016. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Ask the Veteran to identify all private medical treatment providers for his lumbar spine disability and furnish appropriate authorization for the release of the medical records. If any records cannot be obtained, inform the Veteran of this fact, tell him what efforts were made to obtain the records, and advise him of any additional development that will be undertaken. 3. Thereafter, forward the claims file, including a copy of this remand, to the individual who conducted the January 2016 examination, or another examiner if that individual is unavailable, to provide a new medical opinion. (A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence.) Review of the claims file should be noted in the examiner's report. Following a review of the relevant evidence and evaluation of the Veteran, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed lumbar spine disability had its onset during military service or is otherwise related to such service. The examiner should note that although there is no record of in-service injuries, the Veteran was awarded the Combat Action Badge and that his lay testimony as to in-service injuries (as described at the August 2014 hearing; see transcript) are deemed credible. Accordingly, the examiner should accept the Veteran's lay testimony as credible evidence that he first experienced back symptoms in service. The examiner should discuss the relationship between the reported injuries and any diagnosed lumbar spine disability. The examiner should provide a comprehensive medical rationale for any opinion offered. In forming an opinion, the examiner should not rely solely on the absence of corroborating evidence (of either treatment or a diagnosis). Rather, the examiner should consider the extent to which there is a medical nexus between the Veteran's in-service symptoms and his current disability. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. 4. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). All claims remanded for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West 2016). _________________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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).