Citation Nr: 18101554 Decision Date: 05/07/18 Archive Date: 05/07/18 DOCKET NO. 03-37 148 DATE: May 7, 2018 ISSUES DECIDED: 0 ISSUES REMANDED: 1 REMANDED ISSUE Entitlement to service connection for a back disability is remanded for additional development. The Veteran had active service from November 1981 to June 1984. This matter is on appeal from an April 2003 rating decision. A hearing was held before a Veterans’ Law Judge in September 2005. The issue on appeal was originally before the Board in February 2005 and March 2006 when it was remanded for further development. In May 2007, the Board issued a decision denying the appeal. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2008, the Veteran and the Secretary of Veterans Affairs filed a Joint Motion requesting that the Court vacate the Board’s decision and remand the matter for further action. The Court granted that motion in July 2008. The case was subsequently returned to the Board. In September 2009, the Board in turn remanded the case for additional development of evidence. In April 2010, the Board issued a decision denying the benefit currently sought on appeal. The Veteran once again appealed this decision to the Court, and in July 2011, the Court issued a decision in which it vacated the April 2010 decision and remanded the matter for further consideration. This claim was subsequently remanded by the Board in January 2012 for further evidentiary development. The Veteran’s claim was subsequently denied by the Board again in November 2012. The Veteran appealed this decision to the Court as well, and in March 2014, the Court issued a Memorandum Decision vacating the Board’s November 2012 decision and remanding this issue back to the Board. The Veteran’s claim was subsequently remanded by the Board in November 2014. In July 2015, the Board issued a decision denying the benefit currently sought on appeal. The Veteran once again appealed this decision to the Court, and in July 2017, the Court issued a decision in which it vacated the Board’s July 2015 decision and remanded the matter on appeal for further consideration. The case is once again before the Board. Request by Veteran for Case to Be Remanded Pursuant to the July 2017 post-Memorandum Decision notice sent to the Veteran by the Board, the Veteran responded in January 2018 by checking the box that reads: “please remand (send back) my case to the AOJ for review of this additional evidence that I am submitting in my appeal. I understand that choosing this opinion may significantly delay the Board’s review of my appeal.” Thus, the issue of entitlement to service connection for a back disability must be remanded for the AOJ to initially review additional records obtained and associated with the record since the July 2015 Board decision. See 38 C.F.R. § 20.1304 (2017). Outstanding Treatment Records In a January 2018 statement the Veteran indicated that there were outstanding VA medical records from the San Diego (La Jolla) VA Medical Center (VAMC). 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. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, on remand, the AOJ should obtain and associate with the claims file all outstanding VA treatment records from this specific medical facility. Additional VA Examination In consideration of the July 2017 Court Memorandum Decision and argument submitted by the Veteran, an additional examination and medical opinion will be obtained. Additional Development As noted above, the Veteran testified before a Veterans Law Judge (VLJ) in a September 2005 hearing. However, during the pendency of the appeal the VLJ retired. In an effort to not delay adjudication of the case any further, while on remand it should be determined if the Veteran would like an additional BVA hearing. If the Veteran no longer wants a hearing, he should indicate clearly (in writing) as soon as possible to avoid further delays in this case. The matter is REMANDED for the following actions: 1. Contact the Veteran and clarify whether he desires a new hearing before a Veterans Law Judge. Upon receiving clarification, schedule the Veteran for the type of hearing he requests. (Any such hearing should be scheduled after the development set out below is completed.) If the Veteran no longer desires a hearing, a statement to that effect should be associated with the file. 2. Obtain all outstanding records from the San Diego VAMC. If records are not available, the San Diego VAMC should specifically note that records are not available. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his back disability and its relationship, if any, to his military service, to include in-service treatment for his back in 1982. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such the examination, and the examiner must indicate that such review occurred. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability of greater) that the Veteran’s back disability had its clinical onset during active duty service or is otherwise etiologically related to his active service. Specifically, the examiner must opine as to whether the Veteran’s spondylolisthesis, which was characterized in 1996 as “old,” is at least as likely as not related to service, to include his 1982 in-service lumbar strain. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 4. After completing the above, and any other development deemed necessary, readjudicate the issue currently on appeal with consideration of all applicable laws and regulations. If any benefit sought on appeal remains denied, issue the Veteran a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.M.Clark, Counsel