Citation Nr: 0809685 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 04-30 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty in the Merchant Marines from November 1944 to June 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Seattle, Washington Regional Office (RO) of the Department of Veterans Affairs (VA). A Travel Board hearing was held at the RO in February 2008. Also in February 2008 the case was advanced on the docket. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant has alleged that he injured his back during basic training. He has indicated that he was helping to launch a vessel a little larger than a life raft when the vessel swayed and knocked him down, causing him to land flat on his back. He stated that he was then taken to sick bay for treatment and observation. The veteran further alleges that his back continued to bother him during service and that he was having severe back pain in late May and early June 1945 while serving aboard the USS Horatio Allen. After he was discharged from the Horatio Allen in June 1945 he went to Seattle and in July 1945 he was admitted to the hospital where he first had his tonsils removed and then had five days of subsequent traction therapy for his back. In conjunction with his claim, the veteran has submitted a certificate of discharge from the Seattle hospital showing that he was treated from July 11, 1945, to July 19, 1945, and that his condition had improved. The certificate does not clearly show the problem for which the veteran was treated. Also, the veteran submitted a letter from his sister indicating that the veteran, after his low back injury in service, had written a letter to their parents explaining what had happened. Both the veteran's service medical records and more specific records of the veteran's July 1945 hospitalization have been determined to be unavailable. Consequently, given that the Board finds that the veteran's report regarding his back injury is credible, and given that there is no documentation of record contradicting this report, the Board further finds that the injury is reasonably established. Also, the veteran has further alleged that he continued to have back problems since the time of his back injury in service to the present day. A July 2003 progress note from a treating physician Dr. S indicates that this allegation could potentially be accurate as he noted that the veteran's back pain "could have originated from his history of injury during his military commitment." Additionally, it is well established that the veteran has a current low back disability as Dr. S has provided diagnoses of lumbar degenerative joint disease status post lumbar laminectomy and chronic severe back pain. Consequently, given that the evidence shows a current low back disability, reasonably establishes some level of back injury in service and indicates that the current low back disability may be related to the low back injury in service, the Board finds that a VA compensation and pension examination is warranted. See 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006). As the veteran has not received such an examination, he should be afforded one on Remand. The Board also notes that in a May 2002 statement the veteran listed the medical providers he had seen for his back problems from service until the present. Some of the providers listed were not identified with sufficient specificity for the RO to attempt to obtain any pertinent records from them. Other providers, however, were identified with sufficient specificity (i.e. name and general location) to allow the RO to attempt to obtain any pertinent records. Accordingly, on remand, prior to affording the veteran the VA examination, the RO should provide the veteran an opportunity to provide any necessary information for providers that he has not identified with sufficient specificity and should then attempt to obtain any available pertinent records from all providers who the veteran has identified with sufficient specificity. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the veteran to provide any additional pertinent details regarding the practitioners he identified in his May 2002 statement and for all sources appropriately identified, the RO should secure copies of complete records of any treatment or evaluation for low back problems. 2. The RO should arrange for a VA examination by an appropriate physician to determine the likely etiology of the veteran's current low back disability. The veteran's claims folder must be made available to the examiner. Any indicated tests should be performed. The examiner should then provide an opinion whether such disability is at least as likely as not related to the veteran's military service-in particular the injury in service as described by the veteran. The examiner should explain the rationale for the opinion given. 3. The RO should then readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and provide the veteran and his representative the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant until he is notified. 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ James L. March 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) (2007).