Citation Nr: 1318583	
Decision Date: 06/07/13    Archive Date: 06/11/13

DOCKET NO.  09-17 065	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for low back disability to include degenerative disc disease.

2.  Entitlement to service connection for diabetes mellitus.

3.  Entitlement to service connection for bilateral hearing loss disability.

4.  Entitlement to service connection for tinnitus.

5.  Whether new and material evidence has been presented to reopen a claim for service connection for hepatitis C and, if so, whether the claim may be granted.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel


INTRODUCTION

The Veteran served on active duty from June 1987 to June 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine.  Jurisdiction was later transferred to the RO in Detroit, Michigan.

Additional duplicate copies of VA treatment records were associated with the claims file following the most recent Statement of the Case.  Because these records are duplicative of evidence considered by the originating agency, referral of this evidence to the originating agency is not warranted.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

The issue of service connection for low back disability to include degenerative disc disease is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.

The issue of entitlement to service connection for an acquired psychiatric disorder has been raised by the record.  As this issue has not been adjudicated by the RO in the first instance, it is REFERRED to the RO for appropriate action.



FINDINGS OF FACT

1.  Diabetes mellitus was not present in service or within one year of the Veteran's discharge from service and is not etiologically related to service.

2.  A hearing loss disability is not shown.

3.  Tinnitus is not shown.

4.  Service connection for hepatitis C was denied in unappealed rating decision issued in April 2004; the evidence received since the April 2004 decision is cumulative or redundant of the evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim, and is not sufficient to raise a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.   Diabetes mellitus was not incurred in or aggravated by active service, and may not be presumed to have been incurred or aggravated therein.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2.  A bilateral hearing loss disability was not incurred in or aggravated by active service, and may not be presumed to have been incurred or aggravated therein.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).

3.  Tinnitus was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).

4.  New and material evidence has not been received to reopen a claim for service connection for hepatitis C.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Additionally, the Court has held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented.  Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006).

VA satisfied its duty to notify.  VA sent to the Veteran all required notice in a May 2007 letter, prior to the rating decision on appeal.

VA also satisfied its duty to assist the Veteran.  VA obtained the Veteran's service treatment records (STRs) along with all other relevant medical treatment records identified by the Veteran to include those records associated with his Social Security Administration (SSA) disability award.  These records have been associated with the claims file.

VA examinations have not been afforded the Veteran in these matters.  In disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, there is no evidence establishing that an event, injury or disease occurred in service (or during an applicable presumptive period), and no indication that disorders claimed were manifested in service, within the initial post separation year, or are otherwise related to service as discussed and explained below.  Thus remand for VA examinations is not necessary.

Also, in regard to the clam to reopen, it is noted that VA is not obliged to provide an examination or to obtain a medical opinion in response to a claim to reopen until new and material evidence has been presented.  See 38 C.F.R. § 3.159(c)(4).

Here, neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim; the Board is also unaware of any such evidence.

Accordingly, the Board will address the merits of the claim.

II.  Claims for Service Connection

The Veteran seeks service connection for diabetes mellitus, bilateral hearing loss disability with tinnitus, and hepatitis C.

The record shows that the Veteran filed an original claim for service connection in February 1994.  At this time, the Veteran sought VA compensation for hepatitis C.  He did not report having any low back disability, diabetes mellitus, or hearing problems related to his period of active service.

In April 2007, the Veteran requested service connection for a low back condition (degenerative disc disease), hepatitis C, diabetes mellitus type II, bilateral hearing loss, and tinnitus.  He noted that he received medical care through the VA, but provided no other details as to the date of onset of these disorders or why he believed VA compensation was warranted for these disorders.

In August 2008, the Veteran expressed disagreement with the rating decision that denied him VA compensation for the claimed disorders.  He provided no explanation as to why he disagreed with the action taken.

In May 2009, the Veteran submitted VA Form 9, a substantive appeal to the Board, in regard to the denied claim.  The Veteran left blank on the form the space provided to him for expressing why he thinks that VA decided the case incorrectly.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Legal Criteria

Initially, the Board notes the Veteran does not assert that his claimed problems are a result of combat.  Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter.
  
Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131.  Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.
 
Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.
 
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b).  However, the Federal Circuit decision in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), recently held the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).

Diabetes mellitus and "Other organic diseases of the nervous system" shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).

The absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  See Hensley v. Brown, 5 Vet. App. at 159; 38 U.S.C.A. § 1154 (West 2002).

The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995). 

Diabetes Mellitus 

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for diabetes mellitus.  Diabetes mellitus is not shown during active duty or within the initial post separation year, and it has not been attributed to active duty.

Service treatment records reflect no findings for diabetes mellitus.  Report of separation examination dated in June 1991 reflects normal clinical evaluation.  Medical records dated in May 1993 reflect hospitalization for psychiatric problems.  A complete physical was conducted to include blood work.  It was noted that fasting blood sugar was within normal limits.  Report of SSA evaluation dated in October 1997 is silent for diabetes mellitus.  There was no history for diabetes mellitus or findings thereof at this time.  "No diabetes or thyroid problem" was noted on review of the endocrine system.  Diabetes mellitus is first diagnosed in 2000, nearly a decade after service separation, and it was noted that the Veteran was morbidly obese at that time.

Neither the lay nor the medical evidence reflects that the Veteran had diabetes mellitus in service or within the initial post separation year.  Also, diabetes mellitus has not been etiologically related to service.

In this case, the Veteran has not reported onset of diabetes mellitus in service or within the one year after his discharge from service.  He further has not reported any basis for his belief that diabetes mellitus warrants service-connection.  Regardless, to the extent that he suggests diabetes mellitus is related to service, the Board finds is not competent because diabetes mellitus, unlike symptoms of thirst, fatigue, etc., is not susceptible to lay observation.  Jandreau, supra.  Furthermore, to the extent that he suggests diabetes mellitus was present within the initial post separation, the Board finds that he is not credible in view of the normal clinical evaluation at service separation in June 1991, normal laboratory findings during his period of hospitalization in May 1993, and the October 1997 SSA evaluation notation that there was no diabetes.  This coupled with the Veteran's original VA compensation claim dated in February 1994, which does not include any mention of diabetes mellitus, weighs against the credibility of any suggestion of diabetes mellitus within the initial post separation year.  Thus, to the extent that the Veteran suggests an etiological relationship to service or onset during the initial post separation year, this evidence has no probative value.

The Board assigns greater probative value to the normal clinical evaluation at service separation in 1991 and on post service exams in May 1993 and October 1997.  Diabetes mellitus is first documented in 2000.  The medical evidence is more probative as it was obtained by skilled, neutral medical professionals after examination of the Veteran and conducting appropriate tests.

Accordingly, because the weight of the evidence is against the claim, the claim is denied.  There is no doubt to resolve as the evidence is not roughly in equipoise.  Gilbert, supra.

Hearing Loss Disability and Tinnitus

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for bilateral hearing loss disability and tinnitus.  A hearing loss disability and tinnitus are not shown during active duty or hearing loss disability is not shown within the initial post separation year.  Moreover, neither a current hearing loss disability nor tinnitus is shown.

Service treatment records reflect no complaints or findings for hearing loss or tinnitus.  Report of entrance examination dated in July 1986 reflects audiological findings as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
0
5
LEFT
15
10
5
5
5

In June 1987, a reference audiogram was performed.  The results were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
10
5
20
LEFT
5
10
10
10
10

Report of separation examination dated in June 1991 reflects that the Veteran denied ear trouble and hearing loss.  Audiological findings were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
5
10
LEFT
5
10
5
5
0

Service treatment records show hearing within normal limits to include at service separation.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (the threshold for normal hearing is from 0 to 20 decibels).  Moreover, the Veteran denied hearing problems and hearing loss on the history part of his service separation examination and he did not report having hearing loss or tinnitus on his original VA compensation claim dated in February 1994.  Although the Veteran submitted a request for VA compensation for hearing loss and tinnitus in April 2007, he provided no other information as to date of onset or treatment.  VA's duty to assist in the development of a claim is not a one-way street.  A claimant seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence.  Wood v. Derwinski, 1 Vet. App. 190 (1991).  The post service medical records reflect no complaints or findings for hearing loss disability or tinnitus.  Neither a current hearing loss disability nor tinnitus is shown.

Because no current disability is shown, or shown during the pendency of this claim, the claim for service connection for hearing loss disability and tinnitus must be denied.  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997).

To the extent that the Veteran reports the existence of tinnitus, the Board accepts that he is competent to report symptoms of ringing ears.  See Layno, supra.  While the Veteran's reports of tinnitus may be construed as a report of ringing ears, the Board finds that his report of tinnitus is not credible in view of the absence of any hearing complaints to include ringing ears in the medical evidence of record.  The record shows that the Veteran is medically followed for hepatitis C, diabetes mellitus, schizophrenia, and other conditions.  It defies belief that he would not have mentioned problems with tinnitus or ringing ears when otherwise obtaining medical care.  Therefore, his report of tinnitus is not credible.

In the absence of proof of a present disability due to disease or injury, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  See also Sanchez- Benitez v. Principi, 259 F.3d 1356 (2001).  
Accordingly, because the weight of the evidence is against the claims, the claims for bilateral hearing loss disability and tinnitus are denied.  There is no doubt to resolve as the evidence is not roughly in equipoise.  Gilbert, supra.

III.  Petition to Reopen a Previously Denied Claim

Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993).

Here, the RO denied the claim for service connection for hepatis C in a January 2005 rating decision as the evidence did not show that it was incurred or aggravated by service.  The claim was again denied in April 2004 because new and material evidence had not been presented to reopen the claim.

In April 2007, the Veteran petitioned to reopen the claim for service connection for hepatitis C.  The RO, in September 2007, denied the claim to reopen.

The evidence of record at the time of the April 2004 decision included service treatment records, VA Form 21-526 dated in February 1994, and VA treatment record dated January-February 1994.  Service treatment records show no findings for hepatitis C and normal clinical evaluation at service separation in June 1991.  A February 1991 entry noted that the Veteran was superficially stuck with a scalpel on the right index finger.  It was noted that the scalpel wound was from a hepatitis negative source, and tetanus was up to date.  The Veteran was given a hepatitis screen.  A week later the Veteran was informed of negative hepatitis B screen in source patient.  On his 1994 VA claim, the Veteran argued that he had hepatitis C due to needle stick in service.  A VA hospital summary dated January-February 1994 reflects that the Veteran had a history of hepatitis C, liver biopsy in 1993, partial course of Interferon treatment in August 1993, and cocaine abuse.

Evidentiary submissions received since the April 2004 RO decision include SSA medical records and VA treatment records dated from 1993 to 2008.  An October 2001 private medical record shows that the Veteran was seen for chest pain.  Past medical history for hepatitis C was noted along with intravenous drug use.  Report of SSA evaluation dated in October 1997 reflects history of hepatitis C diagnosed 5 years earlier treated with Interferon for one year.  The Veteran reported that "he use to work in an operation theater as an assistant and possibly he caught the infection through some scalpel injury."  VA treatment records dated since 1992 note hepatitis C.

After carefully reviewing the recent evidentiary submissions, the Board finds that it is not sufficient to raise a reasonable possibility of substantiating the claim.  The evidentiary defect present at the time the claim was denied is not cured by the recent evidentiary submissions.  The evidentiary submissions, where new, are not material to the claim.  In this regard, the evidence does not show that the Veteran had hepatitis C in service or that hepatitis C first documented after service is etiologically related to service, to include the scalpel stick noted in the service treatment records.  Accordingly, reopening of the claim is not warranted.


ORDER

Service connection for diabetes mellitus is denied.

Service connection for bilateral hearing loss disability is denied.

Service connection for tinnitus is denied.

The petition to reopen the claim for service connection for hepatitis C is denied.


REMAND

The Veteran seeks service connection for low back disability.  The record shows that the Veteran filed an original claim for service connection in February 1994.  At this time, the Veteran sought VA compensation for hepatitis C.  He did not report having any low back disability.  In April 2007, the Veteran requested service connection for a low back condition (degenerative disc disease).

Service treatment records reflect the Veteran went to sick call in January 1989 for complaint of tail bone pain.  There was localized tenderness but no other abnormalities found.  The assessment was musculoskeletal pain.  In May 1989, the Veteran presented with for complaints of pain in the lower back of 4 days duration, which began after lifting.  The assessment was low back strain.  There was tenderness but no spasm or abnormality of the deep tendon reflexes.  Report of separation examination dated in June 1991 reflects normal clinical evaluation of the spine and neurologic system, and that the Veteran denied recurrent back pain and arthritis on the history part of that exam.

There are no back complaints or abnormal findings for many years after service separation.  An April 1997 VA treatment note reflects that the Veteran slipped and fell on ice injuring his back about 4 months earlier.  On follow-up three weeks later, it was noted that his back had resolved.

During his SSA evaluation in October 1997 the Veteran reported periodic low back pain for the past 11/2 years, but no history of any injury.  He reported that this happened after a fall on ice about a year ago.  He denied any fracture and was told he had had contused muscles.  The diagnoses included osteoarthritis of the lumbar spine.

A VA x-ray study of the lumbosacral spine dated in October 1997 reflects an impression as follows:

A single increase of the lumbosacral angle was observed.  The disc space between L5 and S1 appeared minimally narrowed.  No other significant findings noted.

An MRI of the spine dated in November 2006 reflects degenerative disc disease at L4-5 and L5-S1.

Having reviewed the evidence of record, the Board finds that remand for a VA examination is required to decide the claim.  38 C.F.R. § 3.159.  A VA examination and opinion must be obtained where there is an indication that a current disability is related to service.  38 C.F.R. § 3.159(c)(4).  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Duenas v. Principi, 18 Vet. App. 512 (2004) (a VA examination and/or opinion is warranted when there is an indication in the record that a current disability is related to military service; the threshold for an indication is low).  Here, the record shows low back complaints in service and a current low back disability.  The low threshold is met for providing the Veteran with a VA examination and obtaining a medical opinion on his behalf.

Accordingly, the case is REMANDED for the following action:

1.  The RO or the AMC should obtain all updated VA treatment records and any other relevant non-VA medical records identified by the Veteran.

2.  The Veteran should be afforded a VA examination by a physician to determine whether any currently shown low back disorder, to include degenerative disc disease, shown during the appeal period is as likely as not (50 percent probability or greater) related to active duty.  The physician should indicate whether it is as likely as not that the Veteran's in-service symptoms of back pain represent the earliest manifestation of degenerative disc disease.

The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the physician, and any indicated studies should be performed.  A complete rationale for all opinions is required.  The physician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, etc., relied upon in reaching the conclusions.  If an opinion cannot be expressed without resort to speculation, the physician should so indicate and discuss why an opinion is not possible.

3.  Then, the RO or the AMC should conduct any other development required and readjudicate the issue on appeal.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford him the requisite opportunity to respond.  Thereafter, if indicated, the case should be returned to the Board for further appellate action.

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. 2012).




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs