Citation Nr: 1007979 Decision Date: 03/03/10 Archive Date: 03/11/10 DOCKET NO. 08-04 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for degenerative disc disease, to include both the cervical and lumbar spine. REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from January 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming, that denied the benefit sought on appeal. The Veteran appealed that decision, and the case was referred to the Board for appellate review. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2008. A transcript of that proceeding is of record. This case was previously before the Board in January 2009, wherein the Board denied the Veteran's claim of entitlement to service connection for degenerative disc disease of the cervical and lumbar spines. The Veteran appealed the January 2009 Board decision to the United States Court of Appeals for Veterans Claims (Court). By an Order dated August 2009, the Court granted a Joint Motion to remand the aforementioned issues. That Order served to vacate the Board's January 2009 decision. Unfortunately, further development of the evidence is required before the Board can adjudicate the Veteran's pending claim of entitlement to service connection for degenerative disc disease of the cervical and lumbar spines. So, regrettably, this claim is being remanded to the RO via the Appeals Management Center (AMC). VA will notify him if further action is required on his part. REMAND As noted in the August 2009 Joint Motion for Remand, pursuant to the Court's August 2009 Order, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). However, according to the Joint Motion, VA failed to afford the Veteran a VA examination to address whether the Veteran's current degenerative disc disease of the cervical and lumbar spines is related to his service. In this regard, the Joint Motion points out that the Veteran alleges that he injured his back during combat while in service, and that the Veteran's post-service medical records show treatment for upper and lower back disabilities. The Board acknowledges that the Veteran was awarded the Combat Action Ribbon, which is indicative of combat exposure during his service. See 38 C.F.R. § 3.304(d) (satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation). See also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996) (under 38 U.S.C.A. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service). However, although the presumption of a back injury during combat in service is acknowledged, there must still be medical evidence etiologically linking the Veteran's back injury in service to a current back disability. See Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). In short, 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the Board finds that the Veteran should be afforded a VA examination in order to determine nature and etiology of the Veteran's degenerative disc disease, to include both the cervical and lumbar spine. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board notes that, in a December 2009 statement, the Veteran, through his representative requested a hearing before a Member of the Board (now called a Veterans Law Judge (VLJ)). The Veteran indicated a desire to appear at a videoconference hearing before a Veterans Law Judge of the Board at his local regional office. As such, the Veteran should be afforded an opportunity to provide testimony as to the issue on appeal via videoconference or in person at a Travel Board hearing. See 38 C.F.R. §§ 20.700, 20.704 (2009). Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the Veteran for a VA spine examination to determine the nature and etiology of his degenerative disc disease of the cervical and lumbar spines, including whether it is at least as likely as not (i.e., 50 percent or greater probability) that his current degenerative disc disease of the cervical and lumbar spines, is related to his service in the military, to include any alleged injuries during his period of military service. To assist in making this important determination, have the designated examiner review the claims file for the Veteran's pertinent medical history, including a copy of this remand, the Veteran's service medical records, and pertinent post-service medical records. The examiner should conduct all necessary diagnostic testing and evaluation. The requested determination should also take into consideration the Veteran's medical, occupational, and recreational history prior to, during, and since his military service. The medical basis of the examiner's opinion should be fully explained with reference to pertinent evidence in the record. If an opinion cannot be provided without resorting to speculation, please indicate this in the report. 2. Schedule the Veteran for a hearing before a Veterans Law Judge of the Board at his local regional office, via videoconference, in accordance with the docket number of this case. Notice of the scheduled hearing should be provided to the Veteran at his most recent address of record and a copy of such notice shall be associated with the Veteran's claims file. Thereafter, the case should be returned to the Board, if in order. The purpose of this remand is to ensure due process. The Board does not intimate any opinion as to the merits of the case either favorable or unfavorable at this time. No action is required of the veteran until he is notified. The appellant 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 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. 2009). _________________________________________________ V. L. JORDAN 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) (2009).