Citation Nr: 1326300 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-27 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a low back disability. ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The appellant served in the Pennsylvania Army National Guard, including periods of active duty for training (ACDUTRA) from November 1977 to May 1978 and from June 3, 1995 to June 17, 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appellant was scheduled for a Board hearing in March 2013. He failed to report to the hearing. 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 Board finds it necessary to remand the claim for additional development. The appellant contends that he had a preexisting low back disability aggravated during a period of ACDUTRA between June 3 and June 17, 1995. A line of duty report documents that the appellant had an injury of lower lumbar pain when he experienced problems when shoveling dirt during training exercise at Fort Pickett, Virginia. The injury was considered to be in the line of duty and he subsequently received treatment for low back pain. The evidence also reflects that the appellant had a history of lumbar disc surgery in 1993. This implicates a possibility of a low back disability that preexisted the appellant's relevant period of ACDUTRA. Notably, the presumption of soundness does not apply to periods of ACDUTRA when the appellant does not have veteran status. See, e.g., Donnellan v. Shinseki, 24 Vet. App. 167 (2010). Moreover, there is evidence showing that the appellant had additional low back problems after this period of ACDUTRA. Records from the Social Security Administration (SSA) reveal that the appellant was found to be disabled by SSA due to failed back surgery syndrome with evidence of surgery in 2000. A VA examination was conducted in July 2010, but the opinion did not address all the aspects of the claim and the SSA records had not yet been associated with the claims file. Thus, on remand, the appellant should be scheduled for another VA examination. In addition to the examination, a medical opinion should be obtained that addresses whether the appellant had a low back disability that preexisted the June 1995 period of ACDUTRA, whether any preexisting low back disability was aggravated during the period of ACDUTRA, and whether any current low back disability is attributable to the June 1995 injury. Moreover, the appellant's complete Army National Guard records should be requested on remand. Some service dental records have been obtained and the appellant submitted relevant service records from June 1995. However, there may be additional service records given his 20-year Guard service. Accordingly, this case is REMANDED for the following actions: 1. Contact the appropriate records custodian and request the appellant's complete records from his service in the Army National Guard. 2. Thereafter, schedule the appellant for a VA examination of his low back. The entire claims file, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. All appropriate tests and studies should be performed and all clinical findings should be reported in detail. The examiner should identify the appellant's current low back disabilities. Based on the examination and a review of the evidence of record, the examiner should answer the following questions: a. Did the appellant have a low back disability that preexisted his period of ACDUTRA from June 3 to June 17, 1995? b. If so, did the preexisting low back disability increase in disability beyond the natural progress of the disease during the period of ACDUTRA? Consideration should be given to the low back injury that was in the line of duty. c. Is any currently identified low back disability the same preexisting low back disability or otherwise related to the preexisting low back disability? d. Regardless of whether there was a preexisting low back disability prior to the period of ACDUTRA, is any currently identified low back disability related to the June 1995 low back injury that was in the line of duty? All opinions should be set forth in detail and explained in the context of the record. 3. The appellant must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the appellant advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 4. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issue on appeal. If the benefit sought is not granted, furnish the appellant with a supplemental statement of the case and afford him an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified by VA. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).