Citation Nr: 0815048 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 05-17 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a condition of the lumbar spine. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J. Smith, Associate Counsel INTRODUCTION The veteran served from April 1981 to May 1984, and September 1984 to April 2003. The veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Montgomery, Alabama, that denied the benefit sought on appeal. 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 Board finds that details about the character of the veteran's service must be ascertained before adjudication can take place. On his January 2003 claim form, the veteran states he served with the Active US Air National Guard from December 1984 to March 2003. He contends his back was injured during this time. Medical records from this time confirm this. For example, a record from August 1989 shows a diagnosis of sciatica, and records from August 1996 and November 1997 show a diagnosis of spondylolysis at L5. However, the veteran's duty status, including whether his service at that time constituted active duty for training or inactive duty for training, is unknown. It appears by a deferred rating decision of September 2003 that the RO attempted to ascertain this information, but it was never resolved. This is essential information which must be obtained before adjudication can take place. A remand is additionally required in order to afford the veteran a VA examination to determine the nature and etiology of his disability. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2005). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. Here, the veteran was diagnosed with levoscoliosis, disk space narrowing and muscle spasms of the lumbar spine in a VA examination of March 2003. As described above, there is documentation of back problems during the veteran's time in the Air National Guard, but the VA examiner provided no opinion as to any link between the current diagnosis and the problems documented in service. The examiner also indicated his report was prepared without a review of the veteran's claims file. In addition, there is some indication that the veteran's back problems noted from his time in service are congenital, as the November 1997 record cites a congenital defect in the pars intarticulares of L5. A examination is needed to reconcile all of this evidence. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Record Center and/or the appropriate service entity and request that (1) it verify the veteran's periods of active duty, active duty for training, and inactive duty for training with the Air National Guard, and (2) forward any and all available service medical records associated with such duty that are not already incorporated in the record. If no additional service medical records are located or if the dates and character of the veteran's service in the Air National Guard cannot be ascertained, a written statement to that effect should be requested for incorporation into the record. 2. The veteran should be afforded an examination of his lumbar spine to confirm the diagnosis of and ascertain the nature and etiology of his lumbar spine condition. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer comments and an opinion as to whether the veteran entered service with a lumbar spine condition. If so, the examiner is requested to indicate whether the lumbar spine condition increased in severity during service, and if it did, whether the increase in severity represented a chronic worsening of the disorder or the natural progress of the disorder. If the veteran did not enter service with a lumbar spine condition, the examiner is requested to offer an opinion as to whether the lumbar spine condition is in any way causally or etiologically related to the symptomatology shown in the medical records from the time the veteran was serving in the Air National Guard. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner. The veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. The consequences of failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2007). After all of the above actions have been completed readjudicate the veteran's claim. If the claim remains denied, issue to the veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. The appellant 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). _________________________________________________ MARJORIE A. AUER 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) (2004).