Citation Nr: 1815415 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 14-15 610A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this proceeding is associated with the claims file. In November 2017, the Veteran's representative requested that the RO issue a Statement of the Case in response to the Veteran's November 2011 Notice of Disagreement. In October 2011, the RO denied service connection for a depressive disorder, originally claimed as PTSD. The Veteran filed a notice of disagreement regarding the issue of "service connection for an acquired psychiatric disorder." In July 2013, he withdrew his appeal as to PTSD and wanted to pursue entitlement to service connection for anxiety with depression only. In May 2014, the RO granted service connection for anxiety, which constituted a full grant of the issue that he had disagreed with. The Veteran did not appeal the 2014 rating decision; instead, he filed a new claim for service connection for PTSD in June 2014. The RO construed this claim as a claim for an increased rating for his service-connected psychiatric disability and continued his 30 percent rating in an October 2014 rating decision. The Board finds that the November 2011 notice of disagreement was fully addressed by the May 2014 rating decision granting service connection for anxiety. Again, he had withdrawn any appeal on PTSD and filed a NOD only to the claim for service connection for an acquired psychiatric disorder. However, the Board further finds that the Veteran's subsequent claim for service connection for PTSD was not adequately addressed by the October 2014 rating decision as the Veteran can be service-connected for both PTSD and anxiety disorders (even though he cannot receive separate ratings). The Board therefore refers the issue of service connection for PTSD to the AOJ for adjudication in a rating decision. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran contends that he has experienced pain in his lumbar spine region since a motor vehicle accident in service in which he fractured his transverse process of the third and fourth lumbar vertebrae. He contends that he sought treatment for back pain from private medical providers after service, but an attempt has not been made to associate these records with the claims file. An attempt must be made to obtain these records before the Board can render a decision on the merits. The Veteran also contends that he sought treatment from VA after service, from approximately 1970 to 1982. While an attempt has been made to obtain these records, the RO should make another attempt on remand to ensure that a search of the paper files was conducted. The prior request from the RO only covered 1971 to 1973, nor is it clear the VAMC searched paper records. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's treatment records from the James J. Peters VAMC in Bronx, New York from 1970 to 1982, to include a search of the archived/retired paper files. Any search of retired paper files must be documented if negative, and associate the negative reply with the claims file. 2. Contact the Veteran and request that he list all of his past treatment providers and authorize VA to access his medical records from those providers, including the Sacred Heart Hospital and the Baptist Hospital in Pensacola, Florida. Notify the Veteran that, in the alternative, he can provide these records to VA. 3. If any new records are received, the claims file should be forwarded to a VA examiner for a medical opinion. An in-person examination is not necessary unless determined otherwise by the VA examiner. After review of the claims file, including any records received on remand, the examiner should opine whether it is it at least as likely as not (50 percent or greater probability) that the Veteran's current lumbar spine disorder began in or is otherwise related to service, to include the in-service motor vehicle accident. A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After completion of the above, the issue should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the appropriate time period within which to respond thereto. 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 (2012). _________________________________________________ MICHELLE L. KANE 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).