Citation Nr: 1316463 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 08-32 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and spouse ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1961 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2009, the Veteran testified at a personal hearing held before a Decision Review Officer (DRO). A copy of the hearing transcript has been associated with the claims file. In a December 2011 decision, the Board denied service connection for a back disorder. The Veteran appealed the December 2011 Board decision denying service connection for a back disorder to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 Order, the Court granted a July 2012 Joint Motion for Remand (JMR), vacated the December 2011 Board decision denying service connection for a back disorder, and remanded the claim to the Board for readjudication in accordance with the JMR. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim of service connection for a back disability. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). Addressing the arguments made by the parties of the July 2012 JMR, the Board finds that a VA examination is necessary to assist in determining the nature and etiology of any current back disability. VA must afford a veteran a medical examination or obtain a medical opinion when necessary to make a decision on a claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Court in McLendon v. Nicholson, 20 Vet. App. 79 (2006), provided further guidance, outlining that VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. With respect to the need for an indication that a veteran's current disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, the Court stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology to include symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. In this case, the Veteran asserted that he sustained a muscle strain in his back in 1964 while performing his service duties, which included preparing for test firing of torpedoes by rolling or maneuvering 4,000 pound torpedoes into position, usually by pushing them with his legs. He testified during the February 2009 DRO hearing that his back hurt after maneuvering the torpedoes, and that he sought treatment from a medical corpsman who assessed pulled muscles and gave him some aspirin. In support of his claim, the Veteran submitted a February 2008 statement from a private physician, Dr. M.W., who identified the current back disability as a multilevel degenerative process and opined that the Veteran's pushing of torpedoes in service was a contributing factor for the current back disability. This nexus opinion evidence, though lacking in rationale so as to be too equivocal or lacking in specificity to support a decision on the merits, is sufficient to indicate that the current low back disability "may be associated" with injury or events of military service so as to require a VA examination and medical nexus opinion. The record does not otherwise reflect competent medical evidence on file for VA to make a decision on the claim. A VA examination has not been provided to assist in determining the nature and etiology of the Veteran's current back disability and its relationship to service. In this case, the Board finds sufficient evidence under the low threshold of McLendon to warrant a VA medical examination and medical opinion on the question of the etiology of current back disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic (joints) examination to assist in determining the nature and etiology of any current back disability. Following a review of all relevant evidence from the claims file, an interview with the Veteran to obtain a complete medical history, to include any relevant in-service and post-service back injuries, an examination, and any necessary testing, the examiner is asked to offer the following opinions: a) To the extent possible, distinguish the symptomatology and impairment caused by the multilevel diagnosed degenerative disc disease of the back from the diagnosed degenerative joint disease. b) Is it as least as likely as not (50 percent or greater degree of probability) that a disability of the back began during service or is caused by in-service injury? In rendering an opinion, assume the occurrence of a muscle strain of the back in service while maneuvering 4,000 pound torpedoes; review the Veteran's lay accounts of back pain since service; and specifically address and comment on the private opinion already of record from c) Dr. M.W. in February 2009. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 2. After completion of the above and any additional development deemed necessary, the claim for service connection for a back disability should be readjudicated in light of all the evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. 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). _________________________________________________ J. Parker 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).