Citation Nr: 1114539 Decision Date: 04/13/11 Archive Date: 04/21/11 DOCKET NO. 06-37 042A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a low back condition. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran served on active duty from September 1990 to January 1991. The record also reflects additional service in the United States Army Reserve, at least through April 2010, as well as a period of active duty for training (ACDUTRA) from January 24, 2005 through February 4, 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a low back condition. In May 2009, the Board remanded this matter to the RO via the Appeals Management Center (AMC), in Washington, DC, in order to conduct further evidentiary development. The Board is satisfied that there has been substantial compliance with the remand directives set out in May 2009, as fully explained below. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, although further delay of this matter is regrettable, the appeal is again REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that his current low back disability is the result of a back injury he suffered while on active duty for training (ACDUTRA) in February 2005. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA. 38 U.S.C.A. §§ 101(24), 106; 38 C.F.R. § 3.6. A DD Form 220 (Active Duty Report), showed that the Veteran reported for active duty on January 24, 2005, and was separated from duty on February 4, 2005. It appears that the document was completed by the Veteran's initial active duty station - "Commander, 641st MTC, Fort Benning", and was sent to "Commander, 365 En BN CO C" in Scranton, Pennsylvania. The statement of physical condition (in lieu of medical examination) portion was not completed. A service treatment record, dated February 1, 2005, shows that the Veteran was seen at the Martin ACH (Army Community Hospital) at Fort Benning for a deployment examination. He complained of a right shoulder torn rotator cuff six to seven months prior, for which he was due to have surgery at home. The assessment included normal pre-deployment screening examination, right shoulder sprain rotator cuff (capsule). He was found not fit for deployment at that time, and was to return home and have the repair completed. Another treatment record dated two days later, on February 3, 2005, shows that he was again seen at Martin ACH, but this time for complaints of a URI (upper respiratory infection) and back pain. There was a notation of "previous reported history of back pain", and that his lower back pain was worse with coughing or sneezing, and he had a muscle spasm in the lower back. He reported a history of lower back trauma, and examination showed that his lower back exhibited tenderness on palpation of the left paraspinal region. The diagnoses included contusion with intact skin surface - back left. Thereafter, it appears that the examining doctor completed an individual sick slip (DD Form 689), for the Veteran, on February 3, 2005, marking both "illness" and "injury", and noting that the Veteran was seen for an after effect of a flu shot and back pain. The dispositions included "duty", "hospital" and "pharm". Service treatment records dated thereafter, show no report of or finding of any low back disability. Orders from the Department of the Army showed that on February 4, 2005, the Veteran was released from active duty and assigned to "0365 EN BN CO C" in Scranton. He was declared "non-deployable due to medical". Government transportation was authorized for the Veteran from Fort Benning. Received from the Veteran on February 11, 2005, was a formal claim for service connection for a low back condition (VA Form 21-526). Therein, he indicated he was assigned to an active reserve unit, and that his unit was the 349th General Hospital in Los Angeles. He also indicated he had a low back injury with low back pain on February 3, 2005, and was treated at Fort Benning, but had had no treatment since leaving service. A private x-ray of the lumbosacral spine taken in February 2007 showed degenerative spondylosis and facet disease seen at L5-S1. Private treatment records for the Veteran showed that he was seen in August 2007 for complaints of back pain. He reported that the date of injury/onset was about two years prior, when he had a slip and fall while in the military. The Veteran has asserted he injured his low back during a period of ACDUTRA in February 2005. The Board notes that the Veteran is competent to make such assertions (based on his observations); however, he is not competent to assess whether his current symptoms are related to military service or any event therein. Barr v. Nicholson, 21 Vet. App. 303 (2007). The resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, require professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). As a lay person, the Veteran cannot provide a medical link between his reported in-service low back injury and his current low back symptoms or disability. Id. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The requirement that the evidence "indicates" that the veteran's disability "may" be associated with the veteran's service-is a low threshold. Id. Because a low back injury in service (during a period of ACDUTRA) is suggested by the obtained service records, as well as the Veteran's lay statements, a VA examination is in order to address the claimed low back disorder and any etiology as related to service. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.326; McLendon v. Nicholson, supra. The Board acknowledges that in the May 2009 Board remand, the Board directed that the RO/AMC attempt to obtain the Veteran's reserve unit records (including medical records and verification of all periods of service) from the 365 EN BN CO C in Scranton. The record reflects that several requests were made to this Reserve unit, for the Veteran's records; however, no response was received. Additionally, requests were made to the 412 Engineer Company in Scranton, for the Veteran's records, and no responses were received. Requests for the Veteran's service treatment records (STRs) were also sent to the RMC (Records Management Center) and Defense Personnel Records Information System (DPRIS), and negative responses were received. In December 2010, the AMC made a formal finding of the unavailability of the Veteran's Reserve unit records. However, in March 2011, VA received, from the 349th Hospital Reserve unit, additional service records for the Veteran, dated from 1990 through 2010. Thus, there has been substantial compliance with the May 2009 Board remand. It appears that the Veteran was still attached to a Reserve unit - apparently the 349th General Hospital - as of April 2010. In addition, it appears that this Reserve unit has now sent service records it has for the Veteran. In that regard, the Board finds that no additional development efforts need be taken to obtain records pertaining to the Veteran's Reserve service, unless the Veteran provides any additional information regarding additional units he may have been attached to after April 2010. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide detailed information regarding any additional Reserve units he may have been assigned to subsequent to April 2010 through the present day. If any additional information is provided, attempt to obtain any additional Veteran's Reserve unit records (including medical records and verification of all periods of service) from any named Reserve units. All efforts in this regard should be memorialized in the claims folder. 2. Afford the Veteran an examination to assess the nature and etiology of any current low back disability. The claims file must be made available to the examiner for review in conjunction with the examination. The examiner should be advised that the Veteran is competent to report an incident in service where he injured his low back, as well as any ensuing symptoms or complications he suffered after that incident. The examiner should identify any current low back disability, and opine as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any current low back disability is causally related to the Veteran's reported low back injury during a period of ACDUTRA in February 2005; or whether such a causation or relationship is unlikely (i.e., less than a 50 percent probability). a. Note: The term "at least as likely as not" as used above does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. b. Any opinion provided should include discussion of specific evidence of record. The examiner must set forth the complete rationale underlying any conclusions drawn or opinions expressed. The conclusions of the examiner should reflect review of the claims folder, and the discussion of pertinent evidence. If any question cannot be answered without resorting to pure speculation, this should be stated, with an explanation as to why it is so. 3. Readjudicate the remanded claim. If any benefit sought is not granted to the Veteran's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).