Citation Nr: 1318812 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-12 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his sisters ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from October 1973 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a March 2011 Travel Board hearing. In a September 2011 decision, the Board denied the claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and by a January 2013 Order, the Court approved a Joint Motion for Remand (Joint Motion), thereby vacating the Board's September 2011 decision and remanded the case for development consistent with the Joint Motion. 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 After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim, consistent with the Joint Motion. At a June 2009 VA spine examination the Veteran gave a history of an in-service back injury occurring as a result of heavy lifting. The examiner observed that the Veteran was treated on two occasions, both in July 1974, and that no findings pertaining to the back were noted on his 1976 separation examination report. The Veteran also reported incurring a work-related back injury as a result of lifting a heavy box, after which his back pain also radiated into his right knee; he did not provide a date. Following examination of the Veteran, the following diagnoses were provided: acute lumbosacral strain in 1974 resolved with treatment with no symptoms described at the time of discharge from the service in 1976; and degenerative disc disease of the lumbar spine with back pain, right leg radiation, MRI consistent with right L5-S1 protrusion with moderate disability and slight progression. The examiner opined that it was less likely than not that the current disc disease of the lumbar spine was secondary to the lumbar back sprain that incurred in 1976. Rather, the examiner noted that the available data showed that "this is a work-related injury." In rendering the negative opinion, the examiner appeared to rely on the absence of back complaints at service discharge as well as the Veteran's reports of work-related back injury following service. However, in written statements as well as hearing testimony, the Veteran contends that his back pain did not resolve in service and that it has continued intermittently over the years. He asserts that his back condition was aggravated by subsequent work-related injury. Moreover, the Veteran's sister testified that she witnessed the Veteran's back problems first-hand "right after discharge in '76." These statements were not addressed in the June 2009 VA examination report. The Board cannot determine that the Veteran's lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (2006). Thus, the relationship between the Veteran's spine disability and his military service must be explored further. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a new VA medical examination for the purposes of determining the nature and etiology of his current low back disorder. The claims file must be provided to the examiner for review in connection with the examination. After examining the Veteran and reviewing the claims file, including the service treatment records, the examiner should provide an opinion as to whether a low back disorder is at least as likely as not the result of a disease or injury, if any, in service as opposed to its being more likely the result of some other cause or factors. In rendering this medical opinion, the examiner is asked to comment on the Veteran's assertion that his back pain continued after his discharge from service and that the back condition was aggravated by post-service injury, as well as findings made by the VA examiner in the June 2009 VA examination report. The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).