Citation Nr: 20054127 Decision Date: 08/14/20 Archive Date: 08/14/20 DOCKET NO. 20-03 763 DATE: August 14, 2020 REMANDED Entitlement to service connection for a low back disability, to include arthritis and spondylosis, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1953 to March 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Although the issue certified to the Board was for lower back replacement, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue has been recharacterized to comport with the record. 1. Entitlement to service connection for a low back disability, to include arthritis, is remanded. In the January 2020 substantive appeal, the Veteran indicated that there may be outstanding and relevant service treatment records. However, the record does not show that the RO has exhausted all means to obtain the missing service treatment records, to include attempting to locate them in the Joint Legacy Viewer. A remand is required to allow VA to request these records. In August 2018, the Veteran submitted a VA Form 21-4142, Authorization for Release of Information, for Dr. V.’s treatment records from October 2015 to the present. In an October 2018 Report of Contact, it was noted that the AOJ had contacted Dr. V. three times to obtain the treatment records with no response. If VA is unable to obtain relevant records not in the custody of a Federal department or agency, then VA must notify the Veteran of the identity of the unobtained records, the efforts undertaken to obtain the records, a description of any further action VA will take regarding the claim, and the Veteran’s ultimate responsibility for providing this evidence. 38 C.F.R. § 3.159 (e). However, the AOJ did not provide such notification to the Veteran. As such, a remand is warranted to provide such notice. Post-service private treatment records show that the Veteran has lumbar spine arthritis and spondylosis. The Veteran asserted that while he served with the 11th Marine Regiment, 3rd Battalion, Artillery unit, he worked with 105 mm Howitzers and injured his back in Korea. While available service treatment records do not show that the Veteran injured his back, military personnel records show that the Veteran served with the 11th Marine Regiment, 3rd Battalion as a cannoneer in Korea. Additionally, he reported that he had had back pain since his active duty service. However, the evidence is insufficient for the Board to make a decision on the claim. Therefore, a remand is warranted to obtain a VA medical opinion to determine whether the Veteran’s low back disability was etiologically related to active duty. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Attempt to locate the missing service treatment records in the Joint Legacy Viewer. If the above-noted records do not exist, or additional attempts to obtain these records would be futile, the record should be annotated to reflect such, to specifically include a formal finding of unavailability, and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Notify the Veteran of the unsuccessful attempts to obtain private treatment records from Dr. S. V., a description of any further action VA will take regarding the claim, and the Veteran’s ultimate responsibility to provide this evidence, as required under 38 C.F.R. § 3.159 (e). 3. Then, schedule a VA examination to determine the nature and etiology of the Veteran’s low back disability. Provide the claims file, including a copy of this REMAND, to the examiner for review. After reviewing the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed low back disability, to include arthritis and spondylosis, had its onset during active duty service, or was otherwise etiologically related to service. All opinions expressed must be accompanied by a clear and complete rationale. (Continued on the next page)   In providing the opinions requested above, the examiner must consider statements of record from the Veteran regarding the onset and continuity of symptomatology pertaining to his low back disability since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). J. SMITH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.