Citation Nr: 1319305 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 07-09 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to July 1980 and from November 1981 to December 1984, with additional periods of service in the South Carolina Army National Guard, including active duty for training (ACDUTRA) from August 22, 2005, to August 26, 2005; from August 30, 2005, to September 2, 2005; from September 19, 2005, to September 23, 2005; and, from September 27, 2005, to September 30, 2005. This matter came to the Board of Veterans' Appeals (Board) from an October 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2010 decision, the Board denied the Veteran's claim and he appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran, through his attorney, and the Secretary of VA submitted a Joint Motion for Remand (JMR). In a November 2011 Order, the Court granted the motion, vacated the December 2010 Board decision, and remanded the case to the Board for further appellate review. This matter was remanded in April 2012. 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 Although the Board regrets the additional delay, remand is necessary to obtain an adequate examination regarding the issue in appellate status. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board has an obligation to insure that its remand instructions and those of the Court are substantially complied with. Stegall v. West, 11 Vet App 268 (1998). In April 2013, the Veteran underwent a VA examination. The examiner opined that the Veteran's back conditions were less likely than not due to an in-service injury. The examiner noted that a service treatment record showed a hand out for advice regarding management of back pain dated August 2, 2001. The examiner found no other notes in the service treatment records detailing injuries to or ongoing complaints regarding the back either during active duty or during national guard service. The examiner noted that on multiple reports of medical history, the Veteran denied recurrent back pain. The examiner also opined that the claimed condition clearly and unmistakably existed prior to service and was not aggravated by an in-service injury. The examiner's rationale was the same as above but then the examiner stated that there was no evidence for any pre-existing back condition. Initially, the Board notes that the examiner's finding that the claimed back conditions clearly and unmistakably preexisted service and then the subsequent statement that there is no evidence for any preexisting back condition are clearly contradictory. Moreover, it is not clear what period of time or what evidence the examiner is referring to when it was stated that the Veteran denied recurrent back pain. Finally, it is not entirely clear that the examiner adequately considered the Veteran's medical records and lay statements in formulating the etiological opinions. The evidence of record reflects that the Veteran had ACDUTRA from August 22, 2005, to August 26, 2005; from August 30, 2005, to September 2, 2005; from September 19, 2005, to September 23, 2005; and, from September 27, 2005, to September 30, 2005. The Veteran does not assert that he injured his back during a period of active service; rather he asserts that he injured or aggravated his back during a period of ACDUTRA in August or September 2005. He has specifically denied seeking treatment during his ACDUTRA but asserts that he sought treatment following his ACDUTRA. A new VA examiner should review the claims folder and provide an opinion as to whether the Veteran's current back disability is due to a period of ACDUTRA in August or September 2005, or was aggravated during a period of ACDUTRA in August or September 2005. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Finally, the record reflects that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. The Veteran's SSA records should be requested and associated with the claims folder. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. Jan. 4, 2010). Accordingly, the case is REMANDED for the following actions: 1. Request and associate the Veteran's SSA records with the claims folder or Virtual VA. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. Request that a VA physician with appropriate expertise review the claims folders and provide an etiological opinion with regard to the Veteran's back disability. The examiner should respond to the following: a) Is it at least as likely as not (a 50 percent or higher degree of probability) that a back disability preexisted the Veteran's period of ACDUTRA in August or September 2005? b) If a back disability preexisted his period of ACDUTRA in August or September 2005, is it at least as likely as not (a 50 percent or higher degree of probability) that a preexisting back disability was aggravated (permanently worsened beyond its natural progression) during a period of ACDUTRA in August or September 2005? If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. c) If it is determined that a back disability did not preexist his ACDUTRA in August or September 2005, is it at least as likely as not (a 50 percent or higher degree of probability) that a back disability had its onset during his period of ACDUTRA in August or September 2005, or is otherwise related to a period of ACDUTRA in August or September 2005. The examiner must provide a rationale for the opinions given. The examiner is advised that the Veteran is competent to report his symptoms and history, and that his reports must be considered in formulating the requested opinion. If the examiner rejects the reports of the Veteran, he or she must provide reasons for doing so; the mere absence of supporting clinical evidence is an insufficient reason, by itself, for rejecting his report. If any requested opinion cannot be provided without resort to speculation, the examiner should explain why this is so; and whether the inability to provide the necessary opinion is due to the limits of medical and scientific knowledge or is due to the absence of specific evidence. The examiner should reconcile any opinions with the service records, medical records following his August and September 2005 periods of ACDUTRA, and lay statements of the Veteran. 3. Upon completion of the above, readjudicate entitlement to service connection for back disability. If the benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have 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). _________________________________________________ ERIC S. LEBOFF 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).