Citation Nr: 1314067 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 10-43 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1963 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In that decision, the RO denied entitlement to service connection for a low back disability, characterized as Grade 1/4 spondylolisthesis L5 anterior to S1, desiccation, central disc bulging at L4-5 and L3-4, and focal herniation L1 and L2 on the left. The Veteran testified before the undersigned at a March 2011 hearing at the RO (Travel Board hearing). A transcript of that hearing has been associated with his claims folder. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. In this case, an August 2008 examination report from Carter Anderson includes diagnoses of lumbar/sacral degenerative disc disorder, bilateral lumbar radiculopathy/neuritis, and left lumbar herniated nucleus pulposis at L1-2. Thus, there is competent evidence of a current low back disability. The Veteran has reported that he injured his back in service when he fell while climbing down a rope ladder from a ship to a smaller landing craft during an amphibious landing exercise off the coast of Spain. He did not receive any treatment for his back while in service, but was informed that he had residuals of a prior back injury when he applied for employment with the Los Angeles Police Department in June 1968. He did not experience any further back injuries following service and back pain has reportedly persisted ever since the in-service injury. VA records reflect treatment for an acute back strain following a fall in October 2007. In July 2008, the Veteran reported recurrent episodes of back pain for 25 years. In a March 2011 statement, a VA physician opined that it was likely ("more likely than not") that the Veteran's "lifelong back pain problem" was the result of his back injury in service. There was no further explanation or reasoning provided for this opinion. In sum, there is competent evidence of a current low back disability and an in-service back injury. Also, there is competent evidence of a continuity of symptomatology and a medical opinion that the Veteran's current low back disability is related to the back injury in service. However, the medical opinion is not accompanied by any specific rationale. Although it appears that the opinion is based upon the Veteran's reports of a continuity of back symptomatology since service, there is some evidence contrary to such reports and it appears that these reports may not be credible. Thus, VA's duty to obtain an examination as to the etiology of the current low back disability, is triggered. Such an examination is needed to obtain a medical opinion as to the etiology of the Veteran's current low back disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his current low back disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such shall be reflected in the completed examination report or in an addendum. For each current low back disability identified (i.e. any low back disability diagnosed since July 2008), the examiner shall indicate whether it is at least as likely as not (50 percent probability or more) that the current low back disability had its clinical onset in service, had its clinical onset in the year immediately following service (with respect to any arthritis), is related to the Veteran's reported back injury in service, or is otherwise related to a disease or injury in service. In formulating the above opinion, the examiner shall specifically acknowledge and comment on all low back disabilities diagnosed since July 2008, the Veteran's reported back injury in service due to a fall while climbing from a ship to a smaller landing craft, the back problems that were reportedly discovered when he applied for employment in approximately June 1968, VA records reflecting treatment for a low back injury in 2007 and a reported 25 year history of low back problems reported in 2008, his reports of a continuity of back symptomatology since service, and the March 2011 opinion of the VA physician. The absence of evidence of treatment for back problems in the Veteran's service treatment records or for years after service cannot, standing alone, serve as the basis for a negative opinion. However, the examiner must also consider the inconsistent information concerning no post service back injury and continuity of back symptomatology since service. The examiner must provide reasons for each opinion given. 2. If the benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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 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. 2012). _________________________________________________ THOMAS J. DANNAHER 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).