Citation Nr: 1321005 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 08-31 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to September 1969, including service in the Republic of Vietnam, and his decorations include the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In July 2012, the Board denied the Veteran's claim. The Veteran filed a timely appeal of the decision to the United States Court of Appeals for Veterans Claims, and pursuant to a Joint Motion for Remand, a March 2013 Order vacated the Board's decision and remanded the matter for compliance with the instructions in the Joint Motion for Remand. 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 The Veteran has identified treatment records from his private physician, Dr. C. In October 2007, Dr. C.'s office replied that there were no records for the Veteran dated from February 8, 2007, to February 13, 2007. However, because the Veteran has indicated that he has received treatment from that physician for many years, not just during that short period of time, an attempt must be made to obtain all of Dr. C's treatment records as the pertain to the Veteran. With regard to his claim for service connection for a lumbar spine disability, the Veteran's service treatment records and service personnel records establish that he was injured in a mortar attack while serving in the Republic of Vietnam in July 1968, and suffered multiple fragment wounds to his right hand and forearm and his left 5th and 6th ribs and chest wall. These records do not reflect that the Veteran was treated for a back injury. The Veteran's entrance and exit examinations noted his spine was normal. His spine was noted as normal in a May 1969 Medical Examination Board report. Nonetheless, the Veteran contends that his current back disability was caused or aggravated by service, particularly, the long term effects from the in-service mortar attack. The first indication of a low back disability currently in the claims file, pending records yet to be obtained and reviewed from Dr. C., is a November 2006 MRI which showed increased signal along the vertebral body of L1 with uncertain exact etiology, mild lumbar spondylosis with disk degeneration noted at L5-S1, borderline spinal stenosis at L3/4, and asymmetric bulging of the disk at L5-S1 with bilateral neural foraminal encroachment appearing to be present. The radiologist indicated there was no definite disk herniation demonstrated. Although the VA obtained a VA examination in February 2008 to ascertain the etiology of the Veteran's back disability, a more thoroughly explained opinion is necessary. First, the examiner should take into account that the Veteran's reported low back injury occurred while in combat, and thus he is afforded the presumption as stated under 38 U.S.C.A. § 1154(b). This statute and regulation eases the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, VA shall accept as sufficient... satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b) (West 2002). The reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service; both of these inquiries generally require competent medical evidence. Brock v. Brown, 10 Vet. App. 155 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). Thus, the combat presumption allows for the establishment of service incurrence. A nexus, however, between the current back disability and service still must be established. In that regard, in reviewing the evidence and providing an etiological opinion, the VA examiner should address the June 2007 private opinion that the Veteran's 2006 MRI results showed old damage to the back suffered in Vietnam. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding treatment records relevant to his claim for service connection, specifically from Dr. C, for all periods in which he was treated by Dr. C. After securing any necessary authorization from him, obtain all identified treatment records, as well as any available VA treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records. 2. Schedule the Veteran for a VA examination to ascertain the etiology of his low back disability. The claims file must be reviewed by the examiner and the examination report should note that review. The examiner should provide the rationale for all opinions provided. The examiner should specifically opine as to whether it is as least as likely as not (50 percent probability or greater) that the Veteran's current low back disability was caused or aggravated by his service, to include the Veteran's contention that he injured his back in 1968 when his military vehicle hit a landmine, and the documented 1968 mortar attack and resulting treatment for fragment wounds to the right hand, right forearm, and left ribs. This event occurred while in combat, and thus the Veteran is afforded a lower evidentiary burden as to the establishment of the in-service events as stated under 38 U.S.C.A. § 1154(b). The examiner should take into account the Veteran's lay statements concerning the in-service event and continuity since service, and should also discuss the June 2006 private opinion from Dr. C. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ MILO H. HAWLEY 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).