Citation Nr: 1237295 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 10-16 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to September 1972. This matter comes before the Board of Veteran' Appeals (Board) on appeal from an April 2008 rating decision of the Cleveland, Ohio (Tiger Team) Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a low back disorder. Jurisdiction lies with the New Orleans, Louisiana, RO. In March 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in New Orleans, Louisiana. A transcript of the hearing is of record and associated with the claims folder. 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 Veteran asserts that service connection is warranted for her low back disorder based upon service incurrence. During service, she states that she was in a motor vehicle accident, and therein, sustained head and back injuries. She alleges that although she injured her back, her head injury/concussion was the most serious of the injuries. She has since been service-connected for post concussion headaches, as a result of that head injury. She was not treated for her back injury at all while privately hospitalized from the accident and was only treated on two occasions when she returned to base and was treated in the base facility. However, she maintains that she has had back pain since that motor vehicle accident and has been treated on a continuous basis for the same. She was a military dependent after her release from service and was treated at numerous service department facilities. She has since undergone surgery on her low back. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the appellant's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, the Veteran's VA neurosurgeon wrote a medical statement in support of her claim. The neurosurgeon indicated, in pertinent part, that her age, her slips and falls over the years, and her history of hospitalization after a motor vehicle accident in service were all contributing factors to the later development of spinal degenerative changes. Although the Veteran has not submitted medical evidence that shows treatment specifically for her back related to her motor vehicle accident, she is able to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno v. Derwinski, 6 Vet. App. at 470. The VA neurosurgeon submitted the July 2009 opinion relating in part, the motor vehicle accident to her subsequent back disability. Based on the elements set forth, the Veteran requires additional VA examination which addresses the aforementioned statements relative to the origin of her low back disorder and possible degenerative changes (arthritis) within one year of service discharge. See 38 C.F.R. §§ 3.303(d), 3.307 (2011). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the RO/AMC. 2. The Veteran shall be afforded a VA orthopedic/neurological examination to determine the nature and etiology of her low back disorder. The claims file must be made available for review prior to the examination. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated studies should be performed. The examiner shall provide an opinion indicating whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed low back disorder had onset in-service or within one year of service discharge, or is otherwise shown to have been incurred in, aggravated by, or due to an event of service. In offering these assessments, the examiner must discuss the Veteran's statements regarding the onset and/or chronicity of the pertinent symptoms. All findings and conclusions should be set forth in a legible report. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, such should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. After completion of the above, if the issue remains denied, the Veteran and her accredited representative should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. The Veteran should be given the opportunity to respond to the SSOC. The Veteran 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. 2011). _________________________________________________ JONATHAN B. KRAMER 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) (2011).