Citation Nr: 0813360 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-31 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Fell, Associate Counsel INTRODUCTION The veteran served on active military duty from March 1960 to September 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND Under the Veterans Claims Assistance Act of 2000, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (holding that a VA medical examination was required to adjudicate a claim for service connection where there was a current disability, the Board found credible evidence of an inservice injury, and the lay or medical evidence indicates that the veteran's disability, or symptoms of disability may be related to his military service). The Board finds that remand is required for a VA medical examination. First, there is competent evidence of a diagnosed disability. December 2005 and March 2007 private medical records diagnosed lumbosacral neuritis and disc degeneration. Second, the evidence of record establishes an inservice event. A January 1963 service personnel record noted the veteran participated in training and operational flights in 1962. Additionally, the veteran submitted his OMIAS card, which indicates ejection seat training. Third, the evidence indicates an association between service and the current back disorder. In a June 2006 letter, a private physician stated it was possible to associate the ejection seat training with the veteran's current back disability. Accordingly, remand is required for a medical examination because there is a current disability, inservice incurrence, and evidence that indicates the veteran's disability may be associated with the inservice event. See McLendon, 20 Vet. App. at 83-86. As the veteran has not been provided a VA examination, the case is remanded for the following action: 1. The RO must provide notice as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO must provide the veteran with an orthopedic examination to determine the etiology of any low back disorder found. The claims folder, including a copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must provide an opinion, in light of the examination findings and the post service medical evidence of record, whether any low back disorder found is related to the veteran's military service, to specifically include inservice flight training, as well as ejection seat training. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report. The rationale for all opinions expressed must be provided. The report prepared must be typed. 3. The RO must notify the veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. At the veteran's hearing before the Board in March 2008, a motion to hold the record open for 60 days was granted. However, as the Board has determined that a remand is necessary for a VA examination, in order to expedite the appeal, the Board is proceeding prior to the end of the 60 days. This action results in no prejudice to the veteran in this matter, as he may present any additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).