Citation Nr: 0815096 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-30 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for mechanical low back pain. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD B. A. Jonas, Associate Counsel INTRODUCTION The veteran served on active duty from February 1993 to February 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeals from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 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 RO denied service connection because there is insufficient evidence in the record to show an injury in service and that said injury is related to the veteran's current mechanical low back pain. In August 2005, the RO issued a formal finding of the unavailability of the veteran's service medical records. During the March 2008 Board hearing, the veteran testified that he was assigned light duty after twisting his back when servicing a Humvee. Although the RO found the service medical records to be unavailable, the possibility remains that personnel records listing duty assignments may be located. This evidence may corroborate the veteran's account of a significant injury in service. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R. §§ 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service- connected disability. This requirement could be satisfied by competent evidence showing post-service treatment for a condition, or other possible association with military service. 38 C.F.R. § 3.159(c)(4). In this case, there is insufficient competent medical evidence to decide the claim. However, the veteran is entitled to a VA examination. Lay statements from the veteran, his wife, and Army Recruiter Macy Cooley recount the veteran's history of back pain complaints and treatment from his time in service to the present. Since there has been no VA examination to establish a current diagnosis or etiology of the veteran's mechanical low back pain, an examination should be scheduled. The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain the veteran's personnel records listing his duty assignments and associate with the claims file. 2. Schedule the veteran for a VA examination to ascertain the nature and etiology of his symptoms. It is imperative that the claims file be made available to the examiner for review in connection with the examination. All indicated studies should be performed, and all findings should be reported in detail. If a diagnosis is made, the examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the mechanical low back pain is the result of an injury in in service. The examiner should provide a complete rationale for each opinion. 3. Readjudicate the issue on appeal in light of all of the evidence of record. If the benefit is not granted, furnish the veteran and his representative with a supplemental statement of the case and afford an opportunity to respond before returning the record to the Board for future review. 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). _________________________________________________ MARY GALLAGHER 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).