Citation Nr: 0814654 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 07-27 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. Kessel, Associate Counsel REMAND The veteran had active military service from April 1966 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). The veteran submitted written statements in support of his claim and provided hearing testimony before the Board in January 2008. The veteran alleges that he injured his back during his active military service. He asserts that he has experienced low back pain since his time in service and that he has a low back disability as a result of the in-service injury. Thus, he believes that service connection is warranted. A review of the veteran's service medical records is negative for complaints of or treatment for low back pain. The veteran's March 1970 separation examination was normal regarding the back and no reference was made to a recurrent back problem or in-service injury involving the back. Despite the absence of documentation of an in-service back injury, the veteran maintains that he experienced low back pain while performing his military duties. Personnel records show that the veteran's military occupational specialty was a stock clerk. He states that at first he had a desk job, but then his duties required him to lift and transport various items, primarily electronic devices for Navy aircraft. The veteran explains that although some of the items were only five pounds, other items were over one hundred pounds in weight. In some instances, he had assistance in moving the items, but in other instances he had to move the items by himself. The veteran states that he went to sick bay on at least two occasions for low back pain and was treated with pain medication. He does not know why references to those instances of treatment are not contained in his service medical records. In sum, he believes the heavy lifting resulted in a back injury that was manifested by low back pain. Although the veteran is not competent to provide an in- service diagnosis of a low back disability or link any current low back pain or disability to military service, he is competent to report factual matters of which he has first hand knowledge, such as the lifting of heavy objects. See Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report experiencing symptoms that are capable of lay observation, such as low back pain. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, nowhere do VA regulations provide that a veteran must establish service connection through medical records alone. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Here, the veteran has submitted lay statements from his two brothers, dated in January 2008. His one brother, D.L., stated that the veteran mentioned that he was experiencing some back problems when they communicated during the veteran's military service. D.L. also stated that their parents mentioned that the veteran had back problems during service. His other brother, D.K.L., had a similar remembrance of the veteran's back problems during military service. Given the veteran's circumstances of service, and his credible statements and hearing testimony that were generally corroborated by his brothers' statements, it is likely that the veteran experienced low back pain while performing his duties during active military service. In order for the veteran to substantiate his claim of service connection, there must still be sufficient evidence of a current low back disability that is attributable to the in-service injury. A review of the post-service medical records reveals that the veteran was treated for low back pain by S.J.P, M.D., beginning in January 2004. A July 2004 x-ray report documented that the veteran had degenerative changes of the lumbar spine. Dr. S.J.P. did not offer an opinion as to the etiology of the veteran's low back disability. The veteran stated that he was previously treated for low back pain at Caylor-Nickel Clinic, but that private treatment facility did not provide the identified records when requested. Any such records may have been destroyed. VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2007); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Although the veteran was not afforded a VA examination in connection with the claim, one is warranted given the state of the evidence. Here, there is competent evidence of a current low back disability and lay evidence establishing that the veteran experienced low back pain during service. Because there is an indication that the current disability may be associated with the veteran's service and there is no competent medical nexus evidence of record, a VA examination is warranted so the Board may adjudicate the claim. Accordingly, the veteran should be scheduled for a VA examination in order to determine the nature of any low back disability. A medical nexus opinion should also be requested in order to determine whether the veteran has a low back disability that is related to his active military service. Accordingly, this case is REMANDED for the following actions: 1. Schedule the veteran for a VA examination. The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, the examiner designated to examine the veteran. All appropriate tests and studies should be performed and all clinical findings should be reported in detail. The examiner should provide a diagnosis of any current low back disability, if any. Based on a thorough review of the evidence of record, the examiner should provide an opinion as to the medical probabilities that the veteran has a current low back disability that is related to his active military service, particularly his stated in- service low back pain resulting from lifting heavy objects. The examiner should also indicate whether any such disability is more likely than not of post-service onset. All opinions should be set forth in detail and explained in the context of the record. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner. (The veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim. See 38 C.F.R. § 3.655 (2007).) 2. After undertaking any other development deemed appropriate, re- adjudicate the issue on appeal. If the benefit sought is not granted, furnish the veteran and his representative with a supplemental statement of the case (SSOC) and afford them an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by VA. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).