Citation Nr: 1801580 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-01 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney-at-Law ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. In December 2017, the Veteran, through his representative, submitted additional evidence in support of his appeal along with a waiver of Agency of Original Jurisdiction (AOJ) consideration. Nevertheless, the Board observes that section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amends 38 U.S.C. § 7105 by adding new paragraph (e), provides that if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. In the instant case, the Veteran's substantive appeal was received in January 2014. As such, the Board may properly consider such evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that further development is needed before deciding the issue of service connection for a low back disorder. The Veteran was afforded a VA examination with opinion in January 2012. The examiner opined that the Veteran's diagnosed low back disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that although there were incidents of back injuries in service and back pain, there was a temporal gap of about 27 years between the initial back injury and surgical treatment for his back pain in 1995. There were no private medical records available for this evaluation documenting treatment of low back pain between finishing military service and 1995 and up to the present. However, the examiner noted that there was no evidence available of trauma to the lumbar spine or accident injuring the low back after service. However, as pointed out in a December 2017 statement from the Veteran's representative, the examiner failed to consider the Veteran's competent lay statements that he has experienced back pain since discharge. Moreover, additional statements from the Veteran and his wife were submitted. The Veteran continued to report that he had been experiencing back pain with flare-ups since service. His wife reported that she has been married to the Veteran since 1973 and she had witnessed his back pain since that time. Thus, as the VA examiner did not consider all the relevant evidence of record when proffering the opinion, the VA examination with opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Accordingly, the Board finds that this matter should be returned to the AOJ for another examination. The Board finds that an examination rather than an opinion is necessary so that the Veteran's full medical history may be obtained. Moreover, there is an indication in the record that the Veteran may be receiving Social Security Administration (SSA) disability benefits. However, it does not appear that the Veteran's SSA records have been requested. Thus, the AOJ should obtain the administrative decisions pertaining to the Veteran's claim and any underlying medical records from the SSA. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the SSA, including decisions by the administrative law judge); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Lastly, in light of the need to remand, the AOJ should take appropriate steps, including contacting the Veteran and obtaining any necessary authorization, to obtain any pertinent private treatment records not already of record. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his low back disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 2. The AOJ should obtain a copy of any SSA disability benefits decision and the records upon which that decision was based and associate them with the record. If the search for such records has negative results, the record must be properly documented as to the unavailability of those records. 3. The AOJ should schedule the Veteran for a VA examination to address the etiology of the Veteran's low back disorder. The record should be made available for review. The examiner should determine whether it is at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed low back disorder is related the injuries in service. All opinions should include a rationale. In proffering the opinion, the examiner should consider the Veteran's competent lay statements concerning experiencing back pain since service as well as wife's statement of witnessing the Veteran's back pain since 1973. 4. Readjudicate the appeal. The appellant 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 (2014). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).