Citation Nr: 1325030 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 09-45 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Bryan J. Held, Agent ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 2002 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to service connection for a bilateral knee disability has been raised by correspondence dated in May 2011, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND A review of the record shows the Veteran has asserted that his back became aggravated by Special Forces training and subsequent airborne operations and field exercises. In his June 2009 notice of disagreement he claimed congenital stenosis of the spine had been aggravated by active service. VA treatment records dated in November 2008 noted that he complained of low back pain that appeared to be primarily muscular. Magnetic resonance imaging (MRI) revealed possible mild congenital lumbar spinal canal stenosis and minimal degenerative changes, especially at the lumbosacral level. No etiology opinions concerning the MRI diagnoses were provided and a VA examination to assess the Veteran's low back disability claim was not conducted. The Veteran's reports that he experienced back symptoms, to the extent described, during active service are found to be credible and consistent with the circumstances of his service. The Board notes that congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (2012). However, service connection may be granted for defects of congenital, developmental or familial origin if the defect was subject to a superimposed disease or injury. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45711 (1990). Therefore, further development is required prior to appellate review. VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate claims. In claims for disability compensation, that duty requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). A medical examination or medical opinion is necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2012). The types of evidence that indicate that a current disability may be associated with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issue on appeal. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for an appropriate VA examination for an opinion as to whether it is at least as likely as not (50 percent probability or greater) that he has a low back disability as a result of active service, to include a congenital defect that was subject to a superimposed disease or injury (to include that the congenital disease or injury is shown by symptom manifestations to have increased beyond the normal progress of the defect) during active service. The examiner should also provide an opinion as to whether it is as likely as not that any non-congenital back disability found is related to service. All indicated tests and studies are to be performed. The examiner must review the claims file and must note that review in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).