Citation Nr: 0811634 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 04-02 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Douglas J. Boorstein, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from November 1964 to September 1966. This case comes before the Board of Veterans Appeals (Board) on appeal from an October 2001 rating decision of the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office, which denied entitlement to service connection for a low back disability, a neck disability, and post-traumatic stress disorder. Notice of this decision was sent in January 2002. In his February 2004 substantive appeal, the veteran requested a hearing at a local VA office before a member of the Board. A hearing was scheduled at the local RO for January 2008 and the veteran was given notice of the hearing by letter dated in December 2007. The veteran failed to appear for his scheduled hearing, and there is no record that a request for another hearing was ever made. Without good cause being shown for the failure to appear, no further hearing can be scheduled and appellate review may proceed. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration. The veteran contends that he incurred PTSD and an injury to his lower back and neck during service. Specifically, the veteran alleges that during an incident in Vietnam a truck in which he was riding hit a mine, and he and another individual were attacked by the Viet Cong. The veteran has indicated that he injured his neck and back during this incident, and also incurred PTSD. The veteran has provided a copy of article from an issue of "Stars and Stripes" which documents this incident. In this regard, the Board also notes that Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Rather, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. Id. The record shows that the veteran complains of flashbacks and anxiety. It also confirms the occurrence of the veteran's in-service stressor. See also October 2001 rating decision. However, the Board finds that a VA examination is required in this case under the duty to assist provisions codified at 38 U.S.C.A. § 5103A(d) (West 2002) and by regulation found at 38 C.F.R. § 3.159(c)(4) (2007). See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Section 3.159(c)(4) sets forth three criteria to determine whether the VA is required to provide a medical examination. A VA examination is needed when the record contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; evidence that the veteran suffered an injury or disease in service, or has a disease or symptoms of a presumptive disease; and indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The veteran has met the threshold burden required under § 3.159(c)(4). See McClendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that the "may be associated" element is a low threshold). With regard to the veteran's low back disability and neck disability, the Board similarly finds that a VA examination is necessary. The available records indicate that the veteran has a current disability of his low back and neck. The record reflects that the veteran has received treatment for his low back and neck since 1985. A more recent VA outpatient medical record dated in January 1999 indicates that the veteran incurred severe neck pain while working on a roof and moving a compressor in July 1998. A January 1999 treatment record indicates that the injury while moving a compressor aggravated his old in-service neck injury. Given the occurrence of the in-service stressor and the veteran's assertions relating his current disorders to that in-service event, including the 1999 medical suggestion, a VA examination is necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA psychiatric examination. The examiner should review the veteran's claims folder. The examiner should specifically indicate whether such review occurred. All necessary testing should be performed and all appropriate diagnoses rendered. The examiner should determine whether the veteran has PTSD. If the veteran does not have PTSD, the examiner should so state. If the veteran does have PTSD, the examiner should opine whether it is at least as likely as not (i.e., probability of 50 percent or more) that the veteran's PTSD is related to the in-service stressor. All opinions must be supported by a complete rationale. 2. Schedule the veteran for a VA examination to determine the nature and etiology of his low back and neck disability. The examiner must review the veteran's claims folder. The examiner should specifically indicate whether such review occurred. All necessary testing should be performed and all appropriate diagnoses rendered. The examiner should identify all low back and neck disabilities present. If no disability is present, the examiner should so state. For any disability present, the examiner should opine whether it is at least as likely as not (i.e., probability of 50 percent or more) that the veteran's low back or neck disability began in service or is in any way related to active service, to include the in-service truck incident. All opinions must be supported by a complete rationale. 3. Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted to the veteran's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded the appropriate opportunity to respond thereto. 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). _________________________________________________ C. CRAWFORD 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).