Citation Nr: 1325419 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 10-32 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a low back disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1976 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the New York, New York Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (AVLJ) in May 2013. A transcript of that hearing is of record and associated with the claims folder. The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND Service connection for residuals of a back injury was initially denied in a January 2007 rating decision. The Veteran was notified of this decision by letter dated January 22, 2007. The following day, January 23, 2007, VA received additional evidence that included service treatment records (STRs) addressing complaints of low back pain during a period of active duty for training (ACDUTRA) in September 1986. The STRs included September 1986 records noting a muscle spasm and also noting a "prior service injury - approximately 1979 or 1980." The records indicated that civilian medical treatment had been authorized, and a record from a private medical clinic diagnosed muscle spasm. Under VA regulations, if VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims folder when VA first decided the claim, VA must reconsider the claim. 38 C.F.R. § 3.156(c) (2012). In essence, the finality of any previous decision is vitiated by the association of additional, pertinent service department records, and the claim must be reconsidered. The above referenced service records were not previously considered in the January 2007 rating decision, and they are pertinent because they address low back complaints and treatment, and they note a prior injury during the Veteran's period of active duty service. Given the submission of these new service department records, the claim must be reconsidered without regard to the previous final denial. 38 C.F.R. § 3.156(c). VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). Notably, the Veteran has not been provided a VA examination in connection with his current claim for service connection for a low back disorder. As evidence shows the Veteran has a current low back disability (see April 2010 lumbar spine radiological report findings including diminished disc space and disc bulges) and service treatment records reference an in-service injury as well as several instances of low back treatment, the Board finds that the low threshold standard of McLendon is met and a VA examination and etiology opinion is necessary in order to fairly decide the Veteran's claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. Attempt to verify all periods of ACDUTRA, including a period of ACDUTRA in September 1986. The RO should include explanation of their efforts in the claims file. 2. Obtain and associate with the claims file complete copies of the Veteran's service treatment records during all periods of ACDUTRA. 3. Upon receipt of the foregoing records (or a finding that those records are unavailable), afford the Veteran an appropriate VA examination to determine the nature, extent, onset, and etiology of any low back disability. The entire claims file, to include a complete copy of this Remand, must be made available to the examiner. All indicated studies should be performed and all findings should be reported in detail. As to any low back disability diagnosed, the examiner should render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such low back disability had its onset in service (to include during a period of ACDUTRA), or is otherwise etiologically related to the Veteran's active service or ACUDTRA. Specifically, the examiner should consider the Veteran's assertions and the STRs showing low back complaints/treatment in April 1977 (myospasm right lumbar spine), January 1978 (low back pain), and September 1986 (muscle spasm/low back pain)(the latter including notation of a prior injury in 1979 or 1980), in addition to the April 2010 lumbar spine radiological report noting the presence of disc space narrowing and disc bulges. The rationale for all opinions expressed should be provided. If the examiner cannot provide a requested opinion without resorting to mere speculation, s/he should so indicate and explain the factors that prevent him/her from offering the opinion. 4. After the above actions have been completed, readjudicate the Veteran's low back claim. If it remains denied, issue the Veteran a supplemental statement of the case, and afford him the appropriate period of time within which to respond. The case should then be returned to the Board, if in order, for appellate review. The appellant has 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 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). _________________________________________________ M.C. GRAHAM Acting 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).