Citation Nr: 1326631 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-03 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: South Dakota Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The Veteran testified during a hearing before the undersigned Veterans Law Judge in June 2011. A transcript of the hearing is of record. 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 regrets further delay in this appeal; however, after careful review of the record, it finds that a remand is necessary for further evidentiary development of the issue on appeal. In this regard, the Veteran was provided with a VA examination dated in September 2009. After examining the Veteran and reviewing the claims file, the examiner determined that it is not possible to render an opinion as to whether the Veteran's current degenerative joint disease of the lumbar spine is related to the back injury during his service or due an incident that might have happened in his physically demanding civilian job after his discharge without resorting to mere speculation. As part of the examiner's explanation in support of his opinion, he noted that there was a lack of evidence that the Veteran has been having problems with his lower back from his discharge from the service until 1988, when he first sought medical attention. The Board observes that the Veteran's service treatment records include a Report of Medical History form dated in November 1973 as part of the Veteran's enlistment into the Reserves where he reported experiencing recurrent back pain. He was evaluated by an orthopedist and it was determined that he qualified for service. A November 1973 reserve treatment record also documents that the Veteran reported that he wears a back brace. Furthermore, the Board finds that the Veteran's lay statements and testimony that he has had a continuity of low back pain since discharge from active military service is credible. Thus, it appears that the examiner did not consider all of the relevant evidence of record when forming his opinion. In light of the foregoing, the Board has determined that the Veteran should be provided with another VA examination and opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran with a VA examination for his service connection claim for a low back disability. The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether any low back disability found on examination is at least as likely as not (i.e., a fifty percent or greater probability) etiologically related to the Veteran's active military service to include the documented in-service injury and complaints. The examiner should explain the reasoning for his or her opinion(s) including a description of the evidence relied upon and rejected in reaching the opinion(s). As part of his or her rationale, the examiner should discuss the Veteran's credible lay statements of continuity of symptomatology since service and the November 1973 report of medical history of recurrent back pain. 2. Upon completion of the foregoing, readjudicate the Veteran's claim based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. 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).