Citation Nr: 0812602 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 05-39 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a chronic low back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Law Clerk INTRODUCTION The veteran served on active duty from November 1965 to August 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In September 2007, the veteran testified during a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of the hearing is of record. 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 Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A review of the record shows the veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in May 2002. The Court, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), has held that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006. The revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. See 38 C.F.R. § 3.159 (2007). A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). In this case, the veteran contends that his present back disorder was incurred as a result of active service. Service treatment records include an August 1965 report of medical history associated with the veteran's enlistment examination noting a prior back injury with a diagnosis of vertebrae out of place provided by a chiropractor after a minor back strain. A July 1966 report noted complaints of chronic mid to low back pain. An examination revealed slight bilateral muscle spasms. The veteran's August 1967 separation examination revealed a normal clinical evaluation of the spine. Treatment records from the Salisbury VA Medical Center (VAMC) dated in January 2004 show a magnetic resonance imaging (MRI) scan revealed scoliosis with multilevel degenerative disc and facet changes resulting in canal and foraminal stenosis. The claims file currently includes outpatient treatment records from VA Medical Centers in Hines, Illinois, dated prior to March 2005, from Salisbury, North Carolina, dated prior to February 2004, and from Long Beach, California, dated prior to August 2004. A copy of a January 2005 Social Security Administration (SSA) decision indicates the veteran is receiving benefits because of a back disability. There is no indication, however, that the RO has requested copies of the medical records associated with that determination. In support of his claim the veteran also submitted several statements from friends and relatives and a December 2004 statement from D.H. identified as a medical corpsman on the USS Mathews. D.H. recalled that the veteran had reported to sickbay frequently with complaints of back pain and discomfort. In an October 2005 statement the veteran's private chiropractor, E.G.S., found that based upon the statement of D.H. and a history of treatment since separation that the veteran's present disability was incurred or aggravated during active service. VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1132 (West 2002); 38 C.F.R. § 3.304(b) (2007). VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (holding, in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C. §§ 1111, 1132 to the extent that it states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116 (2003). A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2007). In cases involving aggravation by active service, the rating is to reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existed at that time. 38 C.F.R. § 3.322(a) (2007). The Court has also recognized that temporary flare-ups of a pre-existing disorder during service, without evidence of a worsening of the underlying condition, did not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 296-7 (1991). Accordingly, the case is REMANDED for the following action: 1. The veteran should be requested to provide the names and addresses of all medical care providers, VA and non-VA who have provided treatment for his back disorder since February 2005. After the veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 2. Appropriate efforts should be taken to obtain a complete copy of the veteran's Social Security Administration disability determination, as well as all associated medical records. 3. The veteran should be scheduled for a VA orthopedic examination for an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that any present back disability was incurred as a result of service. The physician should address whether the evidence demonstrates a back disability was manifest prior to service and, if so, whether the disorder is shown to have been aggravated beyond the normal progression of the disease during active service. Prior to any examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report. The opinion should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed. All applicable laws and regulations should be considered. If any benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. Thereafter, the case should be returned to the Board, if otherwise in order. By this remand, the Board intimates no opinion as to any ultimate outcome of this case. The veteran need take no action unless otherwise notified. The veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ T.L. DOUGLAS Acting 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).