Citation Nr: 1326660 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-26 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from June 1995 to April 1997 and again from November 2000 to November 2004. It also appears that the Veteran may have had additional service from October 2006 to January 2007. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision by the United States Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran indicated on his October 2011 VA Form 9 that he wished to testify at a Board Videoconference hearing. A Board Videoconference hearing was scheduled for January 2013 and the Veteran was provided notice of this hearing in November 2012. The Veteran failed to report for his scheduled hearing in January 2013. In July 2013 correspondence the Veteran requested rescheduling of his hearing due to "family personal issues that were beyond [his] control." Requests for a change in a hearing date may be made at any time up to two weeks prior to the scheduled hearing if "good cause" is shown. Examples of "good cause" for requesting a new hearing date include, but are not limited to, illness of the appellant and/or representative, difficulty in obtaining necessary records, and unavailability of a necessary witness. See 38 C.F.R. § 20.704(c) (2012). In this case the Veteran submitted his request to reschedule his hearing more than six months after his scheduled hearing date. Further, neither the Veteran nor his representative has offered any good cause for failing to appear at the hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on 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 maintains that he suffers from a current low back disorder as the result of his military service. He is the recipient of the Combat Action Ribbon. In his October 2011 VA Form 9 the Veteran wrote that while he was stationed in Iraq, he was changing the tire on an eight wheel light armored vehicle. During this time, he was in a very dangerous area in Iraq. The tire was rolled off the top of the vehicle and in the process of keeping the tire from rolling down the hill, he hurt his back. Available service treatment records are negative for a low back injury. Significantly, September 1994, January 1997, and July 2000 examination reports show a normal spine. Also, in September 1994, January 1997, July 2000, and May 2001 reports of medical history the Veteran specifically denied "recurrent back pain." VA treatment records show complaints of low back pain as early as June 2006. Subsequently, the Veteran underwent excision of congenital nevus on the right back in August 2006. A September 2006 VA treatment record shows lumbar spasms, especially right lower lumbar SLR (straight leg raising) bilaterally. Initially, in the September 2010 rating decision, the RO wrote that the Veteran had a third period of service with the United States Marine Corps from October 2006 to January 2007. Unfortunately, there is no Form DD 214 in the claims file confirming this alleged service, nor are there any other official records in the Veteran's file supporting this period of service. There are also no service treatment records for the alleged period of service from October 2006 to January 2007. Moreover, while the available DD 214s in the claims file show periods of service from June 1995 to April 1997 and again from November 2000 to November 2004, an August 2006 treatment record around the time of the Veteran's excision of congenital nevus on the right back suggests that the Veteran may have been performing some sort of military service at the time of this surgery. Significantly, an August 2006 treatment record shows that the Veteran was placed on 4th LAR Light Duty/Revised Duty Status from for several days in August 2006 due to the removal of the mole on his right upper back. This evidence calls into question whether the Veteran was performing any sort of military service at that time. On remand, the AMC should obtain any outstanding DD 214s, personnel records, and/or service treatment records for the Veteran, particularly pertaining to this alleged period of service from August 2006 to January 2007. Also, in the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304 (2012). Section 1154(b) does not provide a substitute for medical nexus evidence, but rather serves only to reduce the evidentiary burden for combat veterans with respect to the submission of evidence of incurrence or aggravation of an injury or disease in service. Kessel v. West, 13 Vet. App. 9 (1999) (en banc). Although there is no evidence in the available service treatment records of a low back injury, the Veteran's credible assertion regarding a low back disorder while serving in Iraq and documented combat service establish service incurrence. As above, VA treatment records show complaints of low back pain as early as June 2006 with documented lumbar spasms in September 2006, however, there is no diagnosis of a current back disorder. To date, the Veteran has not been afforded a VA examination to determine whether there is a nexus between his current disability and service. Thus, on remand an examination and opinion are required. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, it appears that there may be outstanding VA treatment records. A review of the claims file shows that the Veteran sought VA treatment from November 2005 through April 2010 but the treatment was very infrequent, and there are no records dated after April 2010. Given the need to remand for other reasons, the AMC should also attempt to obtain any outstanding VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records, particularly from April 2010 to the present. 2. Obtain any outstanding DD 214s, personnel records, and/or service treatment records for the Veteran, particularly pertaining to his alleged service from August 2006 to January 2007. If these records are unobtainable, a negative reply should be noted in writing and associated with the claims file and the Veteran should be notified. 3. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any demonstrated low back disorder. All indicated testing in this regard should be performed and the claims file should be made available to the examiner for review. Based on the examination and review of the record, the examiner is requested to express an opinion as to the whether it is at least as likely as not that any demonstrated low back disorder is the result of disease or injury in service, as claimed by the Veteran. Specifically, the examiner should opine whether there is any medical reason to accept or reject the proposition that the Veteran had an injury to the low back during service, that led to any current low back disorder. The examiner should also opine whether the August 2006 excision of congenital nevus on the right back has led to any current low back disorder. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. The examiner must annotate in the examination report that the claims file was in fact made available for review in conjunction with the examination. Significantly, the examiner should only accept the "competency" of the Veteran's statements regarding an in-service low back injury and pain during service with symptoms of pain continuing on and off since service. The examiner should not make a "credibility" determination. "Competency" differs from "credibility" as well as the weight given to different evidence. Significantly, "competency" is a legal concept determining whether testimony (i.e., the Veteran's lay statements) may be heard and considered, while "credibility" is a factual determination going to the probative value of the evidence after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Layno v. Brown, 6 Vet. App. 465, 469 (1994)). In all conclusions, a discussion of the facts and medical principles involved will be of considerable assistance to the Board. The examiner is requested to explain the basis or bases for his or her opinion(s), based on the evidence of record, his or her clinical experience, medical expertise, and sound medical principles. Please note that the term "as likely as not" do not mean within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended relationship; "less likely" weighs against a causal relationship. Please answer the questions posed with use of "as likely," "more likely", or "less likely" language. 4. The Veteran should be given adequate notice of the requested examination, which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 5. Thereafter, the AMC should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the AMC should review the requested examination report and required medical opinion to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the AMC should implement corrective procedures. 6. After undertaking any development deemed essential in addition to that specified above, the AMC should readjudicate the claim of entitlement to service connection for a low back disorder. 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). _________________________________________________ MARJORIE A. AUER 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).