Citation Nr: 0812245 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-00 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Ahlstrom, Associate Counsel INTRODUCTION The veteran served on active duty from March 1992 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board notes that the veteran was scheduled to appear for a travel board hearing in March 2008. However, he failed to report for this hearing and provided no explanation for his failure to report. The veteran's request for a hearing, therefore, is deemed to have been withdrawn. 38 C.F.R. § 20.702(d) (2007). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required. REMAND The veteran contends that his current back disorder is related to his active duty service. The veteran's March 1992 enlistment examination did not note the presence of any disorder or condition involving the back. The veteran's service medical records reveal that the veteran complained of lower back pain in May 1992 and in August and September 1993. In August 1993, the veteran reported that he had experienced back pain since a 1990 motor vehicle accident. The veteran's separation examination, in April 1994, indicated a normal spine and did not note the presence of a back disorder or abnormality. Also, the veteran reported in the accompanying report of medical history that he did not have a history or current complaints of recurrent back pain. However, the examiner noted in the physician's summary that the veteran had a history of lower back pain which the veteran associated with a motor vehicle accident in 1990 prior to service. Private medical records reveal that the veteran underwent a lumbar microdiscectomy in August 2000 for herniated nucleus pulposus L4-5, left, L5-S1, left. The examining physician noted that the veteran had a long history of bothersome, but not disabling, lower back pain, that had increased with radiating left lower extremity pain and weakness. In his substantive appeal, the veteran contends that he did not injure his back in the 1990 motor vehicle accident, but rather injured it in service. The veteran reports that he experienced back pain since his initial in-service injury, but did not seek medical treatment for six years following his separation from service due to a lack of medical insurance. Given the preceding evidence, it appears that a VA examination for the purpose of a nexus opinion is necessary because (1) the record contains competent evidence related to a currently diagnosed back disorder; (2) the veteran's service medical records reveal that the veteran suffered from back pain on several occasions; and (3) the evidence indicates that the claimed disability may be associated with in-service injuries. See McClendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that the latter element is a low threshold). Accordingly, the case is REMANDED to the AMC for the following action: 1. Schedule the veteran for a VA examination of his back. Ask the examiner to review the claims file in conjunction with the examination and to make a note of such a review in the examination report. Have the examiner conduct all necessary tests and opine as to whether it is at least as likely as not that the veteran's current back disability, herniated nucleus pulposus L4-5, L5-S1, status post microdiscectomy, was initially manifested during, or was otherwise related, to service. 2. Then, the AMC should readjudicate the claim of service connection for a back disorder. The AMC is reminded that for the purposes of establishing service connection, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that both the injury or disease existed before acceptance and enrollment and was not aggravated by such service. (See 38 C.F.R. § 3.304(b)). If the determination remains unfavorable to the veteran, the AMC must issue a Supplemental Statement of the Case and provide the veteran and his representative a reasonable period of time in which to respond before this case is returned to the Board. The veteran 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). _________________________________________________ J. A. MARKEY 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).