Citation Nr: 21001665 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-64 553 DATE: January 11, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran had active service from October 1984 to February 1985. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) from a September 2015 rating decision of the Regional Office (RO) in Milwaukee, Wisconsin. In October 2020, the Veteran testified during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to service connection for a low back disorder is remanded. First, remand is required in order to obtain a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, VA treatment records from September 2010 indicate that the Veteran was diagnosed with chronic low back pain, lumbar spinal stenosis, and degenerative disc disease of the lumbar spine. At the October 2020 Board hearing, the Veteran stated that his low back pain was due to having been a heavy equipment operator while in service. He reported VA and private treatment directly post-service. The Veteran stated that during service he often had to carry heavy equipment, maneuver concrete, and was jerked about on machinery in the course of his military duties. The Veteran’s DD-214 listed the Veteran’s MOS as pavements maintenance specialist and a January 1987 service treatment record indicated that the Veteran was injured in the eye while using a concrete saw. A military record from February 1989 also noted that the Veteran operated several types of equipment. The Board finds that this evidence confirms the Veteran’s lay statements regarding work with concrete, heavy equipment, and heavy machinery while in service. The Veteran’s STRs also contain a note regarding a sharp pain in the back in November 1984. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. Second, remand is required in order to obtain VA and private treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C § 5103; 38 C.F.R. § 3.159 (c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In the October 2020 hearing, the Veteran stated that he believed that medical records pertaining to his back were lost or missing. The Veteran stated that he had sought treatment following discharge and that he had contacted the military Archives in order to locate such records but received a response that these records had been lost. The Veteran stated that he received VA treatment at the Jesse Brown VA in Chicago following service. As there are no VA records associated with the file prior to 2001, remand is required in order to obtain these records. The Board also notes that the Veteran stated that he had private treatment, including a back surgery in 2000. VA’s duty to assist includes assisting the veteran in the procurement of relevant private treatment records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c)(1). As such, remand is required in order obtain VA and private treatment records. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to include private treatment records regarding his back surgery in 2000 and private treatment directly post-service. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Contact the appropriate VA Medical Centers, to include the Jesse Brown VA Medical Center in Chicago and obtain and associate with the claims file all outstanding records of treatment, to include those dated directly after service, in the 1980s. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. After all new records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of the low back disorders, to include chronic low back pain, lumbar spinal stenosis, and degenerative disc disease of the lumbar spine. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed low back disorder, to include lumbar spinal stenosis and degenerative disc disease of the lumbar spine, had onset in, or is otherwise related to, active military service. The examiner must address the Veteran’s assertions of low back injuries during active duty, to include due to his military occupational specialty, which involved lifting heavy equipment, working with concrete, and operating machinery that would jerk the Veteran around. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable.   K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ashley Ki 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.