Citation Nr: 1012139 Decision Date: 04/01/10 Archive Date: 04/14/10 DOCKET NO. 05-23 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Adams, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1979 to September 1992, with additional service in the Army Reserves. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied the benefits sought on appeal. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND As an initial matter, the record reflects that the Veteran served in the Army Reserves, but the precise dates of his reserve service are not entirely clear. Active military, naval, or air service includes any period of active duty training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2009). Active duty training includes full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2009). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active duty training, or from injury incurred or aggravated during inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002). However, the presumptions do not apply to active duty training or inactive duty training. Biggins v. Derwinski, 1 Vet. App. 474 (1991). The Veteran's claims file includes service treatment records dated from March 1979 to March 2002, including records from the Army Reserves. However, it is unclear whether all of the Veteran's Army Reserves service treatment records have been obtained and associated with the claims file. In addition, while the Veteran has submitted his orders for a twenty-one day period of active duty for training beginning in February 2000, additional service personnel records appear to be outstanding, and an attempt should therefore be made to obtain documentation of the specific dates of service and any additional service treatment records. The Veteran contends that he currently has a lower back disability that is related to his military service. The Veteran served on both active duty and in the Army reserves. The Veteran served on active duty from 1979 to 1992, during which time his military occupational specialties were multiple launch rocket system crewmember, Pershing missile crewmember, and cannon crewmember. In May 1984, the Veteran sought treatment complaining of back pain for the previous 8 months. It was noted that there was no recent history of back trauma. At his RO hearing, the Veteran explained that he was lifting heavy artillery rounds when he felt his back pop. The Veteran reported that he went to sick call, but he denied having any x-rays taken. No other treatment records from the Veteran's time on active duty mention back pain. On medical history surveys completed in June 1990 and February 1992 the Veteran denied having any recurrent back pain; and his spine/other musculoskeletal was found to be normal on examination in June 1990. Following his discharge from active duty, the Veteran began working as an exit end operator at a coil coating company. He also served in the Army reserves. Private treatment records show x-rays of the Veteran's back taken in January 2000 were within normal limits. In his claim in 2004, the Veteran asserted that he injured his back during reserve training in July 2000 while stationed at Ft. Stuart in Georgia, and he reported being seen at the Army Aid Station, but no records have been located showing such treatment. In his substantive appeal, the Veteran indicated that he injured his back when he slipped coming out of the cab of a truck in February 2000, while on active duty for training at Ft. Stuart. Records show that the Veteran was on active duty for training for 21 days beginning on February 12, 2000, and a treatment record from February 28, 2000 was submitted in which the Veteran complained of lower back pain that was radiating to his legs for one week. It was noted in the treatment record that the Veteran was getting off of a truck and slipped, and he was assessed with lower back pain. On a medical history survey in January 2001, the Veteran reported having recurrent back pain, and it was noted that a MRI of his back was normal and a pinched nerve was diagnosed. The physical examination found the Veteran's spine/other musculoskeletal to be normal. Private treatment records continue to show lower back related complaints. For example, a February 2002 report notes a one to two month history of back pain and an assessment of low back pain. An x-ray examination revealed minimal degenerative change, but no acute abnormality was seen. A September 2003 MRI indicated a disc herniation at L5-S1 on the left; and the Veteran was diagnosed with degenerative disc disease in October 2003. VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record before it is inadequate. 38 U.S.C.A. § 5103A (West 2002). The Board regrets the additional delay that will result from this remand. Nevertheless, the Board is constrained by the fact that proper adjudication of the claim requires additional development. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2009). Although the Veteran is competent to report the both onset of a lower back disability during service and the continuity of symptoms after service, he is not competent to diagnose or to relate any current lower back disability to his active service. Accordingly, the Board finds that a VA examination is necessary in order to fairly decide his claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, during the course of this appeal it was noted that the Veteran was receiving Social Security Administration (SSA) disability. However, the SSA decision and the records upon which that grant of benefits was based are not included in the claims folder; and because they may be relevant to the claim on appeal, the SSA records should also be obtained. Murincsak v. Derwinski, 2 Vet. App. 363 (1992), Golz v. Shinseki, No. 2009-7039 (Fed. Cir. January 4, 2010). Accordingly, the case is REMANDED for the following action: 1. Contact the United States Army Personnel Center, or any other appropriate service department office, and obtain service personnel records, including the Veteran's NGB Form 22, and complete service personnel and medical records that document the specific dates of the Veteran's active duty, and active and inactive duty training for all periods of service. A formal determination, pursuant to 38 C.F.R. § 3.159(c)(2), must be entered if it is determined that the above records or information do not exist or that efforts to obtain them would be futile. In the event that it is determined that the records are unavailable, provide the Veteran with appropriate notice under 38 C.F.R. § 3.159(c), and allow him an opportunity to respond. 2. Obtain all records from the Social Security Administration, to include all awards of disability benefits and any underlying records used in reaching the determination. All efforts to obtain Social Security records should be fully documented, and a negative response must be provided if records are not available. 3. Then, schedule the Veteran for a VA examination to investigate the etiology of his lower back condition. The examiner should be provided with the Veteran's claims file and should review it. A complete rationale should be provided for any opinions expressed. The examiner should diagnose any current back disability (to include degenerative disc disease); then, if a back disability is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that any lower back disability was incurred in or is due to or the result of any period of the Veteran's active service or active duty training. In providing such an opinion, the examiner should note the Veteran's complaint of back pain during active service in May 1984, with normal findings subsequently; and his treatment for lower back pain after slipping from a truck during active duty for training in the Army Reserves. 4. When the development requested has been completed, the claims should be readjudicated. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or United States Court of Appeals for Veterans Claims for development or other action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ Matthew W. Blackwelder 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) (2009).