Citation Nr: 1326115 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-24 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a back condition. ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 27, 1994 to March 4, 1995, April 28, 1997 to January 28, 1998, and from August 2, 2008 to September 3, 2009. The Veteran also served a period of active duty for special work (ADSW) from May 3, 1999 to September 24, 2001 and completed a period of active duty for training (ACDUTRA) from January 21, 2003 to June 11, 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2010 and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A review of the Virtual VA and VBMS paperless claims processing systems does not reveal any additional documents pertinent to the present appeal. 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 claims that he has a current back condition that is the result of an in-service injury. Specifically, the Veteran states he initially injured his back as a result of hitching a trailer to his truck during a period of ACTUDRA in June 2003. The Veteran alleges he then aggravated his pre-existing back condition by constantly wearing 40 pound body armor during his deployment in Iraq from 2008 and 2009. A remand is necessary for further evidentiary development. Service connection may be granted to a veteran for a disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2), (24); 38 C.F.R. § 3.6(a). The Board notes that presumptive periods do not apply to ACDUTRA or INACDUTRA. See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 U.S.C.A. §§ 1111 and 1131 (presumption of soundness), 3.306 (presumption of aggravation of a chronic pre-existing disease), and 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for periods of ACDUTRA or INACDUTRA is not appropriate. The record shows the Veteran was serving on a period of ACDUTRA when he claims his initial back injury occurred on June 9, 2003. Additionally, the Veteran was on active duty from August 2008 to September 2009 when he claims his back condition was aggravated. However, the Veteran's service treatment records (STRs) are silent for any complaints, diagnosis or treatment of a back condition during these timeframes. The only mention of back problems in the Veteran's STRs is on October 25, 2003, when the Veteran complained of suffering from lower back pain for the past six months from an unknown cause. See Chronological Record of Medical Care, October 2003. The medical assessment on October 25, 2003 was chronic lower back pain and the Veteran was temporarily limited to no running, no walking on uneven surfaces, and no weight bearing over 40 pounds. See Veteran's Physical Profile, October 2003. The Veteran stated that he began having problems in March 2003, started seeing an orthopaedic surgeon in August 2003, was diagnosed with a herniated disk in his lower back and had two epidural injections. See Initial Medical Review- Annual Medical Certificate, October 2003. The Veteran has not been afforded a VA examination for his claim of service connection for a back condition. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in § 3.309, § 3.313, § 3.316, and § 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). The Veteran asserts that his current back condition was initially incurred during ACDUTRA in June 2003 and aggravated during active duty in 2008 and 2009. As discussed above, the Veteran's STRs are silent for any complaints, diagnosis or treatment of a back condition, except for notations on October 25, 2003 that the Veteran had experienced lower back pain since March 2003 or April 2003. The Veteran's file also contains private medical records from El Paso Orthopaedic from August 2003 to October 2003 and Providence Memorial Hospital from December 2003. These medical records show the Veteran's treatment for lower back pain, diagnosis of a herniated disk at L5-S1, two lumbar epidural injections and discectomy surgery with annuloplasty of L5-S1. Based on the Veteran's STRs, private medical records, and lay statements about incurrence of his back condition during ACDUTRA and aggravation of his back condition during active duty service, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any current back condition. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record does not contain any medical evidence that documents the status of the Veteran's back condition since December 2003. VA's duty to assist includes obtaining records of the Veteran's relevant VA and private medical treatment. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1), (c)(2). On remand, the Veteran should identify all medical treatment he has received as a result of his back condition since December 2003. The Board also notes that the Veteran's service medical treatment records may not be complete, as they do not contain any of the treatment which the Veteran asserts occurred while on Active duty in 2008 and 2009. Additional efforts to obtain such records are required. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: 1. Contact the NPRC and request that they provide any additional service treatment records from the periods of active duty in 2003 and 2008/2009. 2. Obtain the names and addresses of all medical care providers who have treated the Veteran for any back issues since December 2003. After securing the necessary release(s), obtain these records. 3. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed back condition. The claims file, including a copy of this remand, must be made available to the reviewing examiner. The examiner is requested to provide the following information: (a) Does the evidence of record clearly and unmistakably show that the Veteran had a back disorder prior to his entry into active duty in August 2008 that was not first manifest during active duty, ACTUDRA or INACTUDRA? (b) If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting back disability was not aggravated by service or that any increase in disability was due to the natural progression of the disease? (c) If the answer to either (a) or (b) is no, is it at least as likely as not (i.e., probability of 50 percent or greater) that any currently diagnosed back disorder had its clinical onset in-service during active duty, ACTUDRA or INACTUDRA or is otherwise related to service. The clinician is requested to provide a thorough rationale for all opinions provided that reflect consideration of both lay and medical evidence. In providing these opinions, the examiner should address the significance of the Veteran's statement that his back pain first began as the result of hitching a trailer to his truck on June 9, 2003 during ACDUTRA, the October 25, 2003 National Guard service treatment records showing a diagnosis of chronic lower back pain, the private medical records from August 2003 to December 2003 showing a diagnosis of a herniated disk at L5-S1, and the Veteran's statement that he aggravated his pre-existing back condition during his deployment to Iraq in 2008 and 2009 due to constantly wearing 40 pound body armor. Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed condition. 4. After completion of the above and any other development deemed necessary, review the record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefit sought. Unless the benefit sought on appeal is granted, the Veteran should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. 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 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). _________________________________________________ MICHAEL MARTIN 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).