Citation Nr: 20068356 Decision Date: 10/21/20 Archive Date: 10/21/20 DOCKET NO. 12-35 688 DATE: October 21, 2020 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1992 to September 1994. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2014, March 2015, April 2017, and September 2018. In the January 2014 and March 2015 decisions, the Board remanded the matter for additional development. The matter came before the Board in April 2017 and the Board denied the Veteran’s claim for service connection. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). The Court approved a Joint Motion for Remand in November 2017. The matter came before the Board again in September 2018 wherein the Board remanded the matter to obtain private treatment records previously identified by the Veteran. The Veteran submitted correspondence stating he requested a hearing and had not received one. The hearing was later scheduled for September 2020, but the Board received correspondence from the Veteran’s attorney in September 2020 withdrawing the Veteran’s request for a hearing. Thus, this matter is properly before the Board for adjudication. While the Board regrets the additional delay on this matter, after a review of the evidence of record, the Board finds that further development is required prior to adjudicating the Veteran’s claim. The Veteran has consistently maintained that he submitted the private treatment records for the RO’s review. The Court noted in the Joint Motion for Remand the RO provided the Veteran with conflicting information regarding whether these records were in the VA’s possession. The Board’s September 2018 decision remanded the matter directing the RO to obtain the private treatment records identified by the Veteran. In the October 2019 Supplemental Statement of the Case, the RO reported that the missing private treatment records were found in a separate electronic depository system provided and maintained by the Veterans Health Administration. They are now uploaded as part of the Veteran’s file. The Veteran contends his back disability began in-service and has continued since he separated from service. The Veteran provided a statement from his mother and she indicated he underwent chiropractic treatment around 1995 or 1996. She additionally reports he went for physical therapy in 1998. The recently found private treatment record from P.N. Medical Center, Department of Physical Therapy, is dated February 1998 and reports the Veteran had acute back pain. While this information is insufficient to grant service connection at this stage, it does trigger the need for a new VA examination. Additionally, the Veteran submitted a VA Form 21-4142 Authorization and Consent to Release Information for chiropractic care he underwent between 1995 to 1996. The authorization is signed by the Veteran and dated March 2014 and the record reflects it was received September 2019. The record reflects the date was invalid and request for the records was not completed. VA correspondence states the request is expired and it must be worked via the traditional process. These records could be relevant to the claim at hand by way of showing a continuity of symptomatology (importantly, the Board at this point makes no finding, positive or negative, as to the Veteran’s contentions of continuity). As these records pertain to the merits of the claim for entitlement to service connection for a low back disability and the VA’s duty to assist has not been completed, this matter must be remanded to attempt to obtain the noted private chiropractic treatment records. In sum, this matter is remanded for additional development. The matter is REMANDED for the following actions: 1. Ask the Veteran to complete a new VA Form 21-4142 Authorization from chiropractor D. E. C. from 1995-1996 regarding low back pain. Make two requests for the authorized records and document the request process. If the VA is unable to obtain the records after making reasonable efforts to obtain them, the VA must provide the Veteran with appropriate notice in accordance with 38 C.F.R. § 3.159(e)(1). 2. Schedule the Veteran for a VA examination with an appropriate examiner to evaluate the Veteran’s lower back disability. The examiner should review the file and provide a complete rationale for all opinions expressed. a) Based upon a complete review of the claims file, to include the Veteran’s lay statement, statements from his family, and supplemental medical records, the examiner is asked to opine whether it is at least as likely as not that the Veteran’s back disability was incurred in or is otherwise related to his active service. The examiner is requested to comment on the Veteran’s private treatment records and lay statements and asked to provide a statement as to continuity of symptomatology. If not shown, please provide a rationale. The examiner is reminded that the Veteran’s lay statements must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. A complete rationale for all opinions must be provided. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.