Citation Nr: 1310489 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 07-29 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Kenneth J. Kukec, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from October 1978 to February 1982. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2009 the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is associated with the claims files. When the case was most recently before the Board in May 2012, it was remanded for the purpose of affording the Veteran another Board hearing. In October 2012, the Veteran was afforded a hearing at the RO before the undersigned Veterans Law Judge. A transcript of this hearing is also of record. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. REMAND The Veteran seeks service connection for a back disability. The Veteran testified at the January 2009 Board hearing that he was on board the USS Nitro in June 1981 when there was a fire. In response to the fire, the Veteran was going down a ladder when there was an explosion which knocked him over, causing him to fall down the ladder and injure his back. The Veteran testified that he has experienced back symptoms ever since the service injury. The April 2009 Board remand stated that the Veteran's testimony was found to be credible and consistent with the ship's history of service. See Washington v. Nicholson, 19 Vet App 362 (2005), citing Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge). Internet research and newspaper articles further corroborate the Veteran's testimony of a fire on board the ship in June 1981. Pursuant to the Board's remand directive, the Veteran was afforded a VA examination in September 2010 to determine the nature and etiology of his back disability. The examiner diagnosed degenerative disc and joint disease of the lumbar spine. The examiner noted that service treatment records did not document any back problem and that the post-service medical evidence showed that the Veteran gave a 5 year history of back pain when he was seen in 2002. The examiner concluded that there was a gap of 16 years between the alleged injury and the onset of back pain. Based in large part on this gap, the examiner provided an opinion that there was less than a 50 percent probability that the Veteran's current back disability was related to the service injury. At the October 2012 hearing before the undersigned, the Veteran provided similar testimony concerning the in-service back injury and chronic back problems since the service injury. The undersigned also found the Veteran to be credible. Therefore, the Board has determined that the September 2010 medical opinion against the claim is not adequate for adjudication purposes and that the Veteran should be afforded another examination to determine the nature and etiology of his back disability. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. 2. Then, the Veteran should be afforded a VA examination by a physician with sufficient expertise (other than the September 2010 examiner) to determine the nature and etiology of his back disability. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should identify any back disorders that have been present during the pendency of the claim. With respect to each such disorder, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder originated during service or is otherwise etiologically related to service. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. The rationale for each opinion expressed must also be provided. 3. Undertake any other development. 4. The Veteran must be given adequate notice of the date and place of any requested examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for an examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 5. Then, the RO should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, issue an appropriate supplemental statement of the case and afford the Veteran and his attorney the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Shane A. Durkin 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) (2012).