Citation Nr: 0814414 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 07-07 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a left ankle disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The veteran served on active duty from March 1969 to October 1971. His DD-214 shows that he served in Vietnam, and received many awards, to include the Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the No. Little Rock, Arkansas Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefits sought on appeal. In December 2007, the veteran testified before the undersigned Acting Veterans law Judge sitting at the RO. A copy of the hearing transcript is of record and has been reviewed. Also, during the hearing, the veteran submitted a waiver of initial RO consideration of the evidence he submitted in October 2007. 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 veteran is seeking service connection for disabilities of the back and left ankle. On review, the Board finds that further development is necessary prior to analyzing the claims on the merits. Private medical evidence of record shows that the veteran underwent a right L5-S1 partial hemilaminectomy, facetectomy, and diskectomy in July 1994. A current magnetic resonance imaging (MRI) report dated in February 2006 shows a diagnosis of spondylolisthesis, mild neural foraminal narrowing, and disc bulges of the lumbar spine. With respect to the veteran's service connection claim for a left ankle disability, the Board notes that private medical evidence of record dated in 1999 and 2000 reflects the veteran's complaints of left ankle swelling. During his December 2007 personal hearing, the veteran testified that he suffers from progressively worsening edema of the left ankle. The veteran essentially contends that his lumbar spine disability and any currently diagnosed left ankle disability are the result of his combat service. Review of the record shows that there is no in-service evidence of back and/or left ankle disabilities; however, as noted, the veteran was awarded a CIB. Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b) (West 2002). Thus, the Board acknowledges that the veteran had combat service. (The Board also observes that the veteran is currently service connected for post-traumatic stress disorder based on his combat service in Vietnam). However, the provisions of 38 U.S.C.A. § 1154 do not obviate the requirement that the veteran must submit medical evidence of a causal relationship between any current disability and service. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996). That is, even assuming combat status, there must be satisfactory evidence of a relationship between combat service and the current disability. Wade v. West, 11 Vet. App. 302, 305 (1998). The record reflects that the veteran has not been afforded a VA examination to ascertain the current nature and etiology of his lumbar spine disability and any currently diagnosed disability of the left ankle. The duty to assist a claimant includes obtaining an examination and medical opinion when necessary to make an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). Thus, on remand, the veteran should be afforded a VA examination. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the veteran for a VA examination to determine the current nature and etiology of his lumbar spine disability, and any currently diagnosed disability of the left ankle. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examination report should reflect that the claims folder was reviewed. Any indicated studies should be performed. The examiner is requested to provide an opinion as to whether there it is at least as likely as not (that is, that there is a 50 percent probability or greater) that the veteran's current lumbar spine disability is related to his period of military service, to include combat service. The examiner should also indicate whether the veteran has a current left ankle disability. If so, the examiner is requested to provide an opinion as to whether there it is at least as likely as not (that is, that there is a 50 percent probability or greater) that the veteran's left ankle disability is related to his period of military service, to include combat service. A complete rationale should be provided for any proffered opinion. 2. Thereafter, readjudicate the veteran's claims for service connection for a back disability and a left ankle disability, taking into consideration any newly- obtained evidence, to include the VA outpatient treatment records submitted by the veteran in October 2007, and any newly obtained VA examination report findings and opinions. If the benefits sought on appeal remain denied, the veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The purpose of this remand is to comply with due process of law. The Board intimates no opinion as to the ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claims. See 38 C.F.R. § 3.655 (2007). 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. Parker 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) (2006).