Citation Nr: 1327711 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 08-18 288 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lumbar spine condition to include herniated nucleus pulposus at L5-S1 on the left with sciatica. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from December 1990 to June 1991. She served in Southwest Asia from January 1991 to April 1991. She has reported serving in the Army Reserve from 1989 to 2006. This case initially before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the RO. The Veteran presented testimony at a hearing held at the RO before the undersigned Veterans Law Judge in October 2009. A transcript of the hearing is associated with the Veteran's claims folder. The records in the Virtual VA paperless claims processing system (Virtual VA) and the Veterans Benefits Management System (VBMS) have been reviewed and considered. Virtual VA shows that the RO in May 2010 and July 2011 adjudicated issues that are not currently in appellate status, to include denying in May 2010 the claim of service connection for a bilateral knee disability. In December 2009 and in August 2011, the Board remanded the issue on appeal to the RO for additional development of the record. As the requested development has not been completed, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND During the hearing in October 2009, the Veteran testified that she injured her back in 1995 during inactive duty for training while in the Reserve. She reported serving as a nurse in a combat support hospital where she twisted her back lifting heavy gear. The representative asserts that not all of her service treatment records from her Reserve service have been associated with the claims folder and requests that an attempt be made in order to obtain these records. The Board's previous remand directives requesting these records in this regard have not been met. Further, the VA examiner's negative nexus opinion in September 2011 is based on an inaccurate factual premise. The basis for the examiner's opinion was that the Veteran was diagnosed with a low back disability in 2006, which the examiner stated was 15 years after her service ended; however, the evidence in the claims folder shows that the Veteran's Reserve service likely extended into the mid-2000's. Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action in order to contact the U.S. Army Human Resources Command, Records Management Center, 345th Combat Support Hospital in Jacksonville, Florida and any other appropriate custodian of federal records and request the following: a.) Confirmation of the Veteran's Reserve dates from 1989 to 2006 and verification of the beginning and ending dates of each period of the inactive duty for training, to specifically include from 1994 to 1995 with the 345th Combat Support Hospital in Jacksonville, Florida; and b.) Copies of all outstanding service treatment records for the Veteran's period of service in the Reserve from 1989 to 2006. The procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c) should be followed. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R.§ 3.159(e). 2. The RO then should take appropriate steps in order to obtain an addendum opinion from the VA examiner who conducted the September 2011 VA examination. If this examiner is unavailable, another suitable examiner should review the claims folder and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the current lumbar spine disability including that due to degenerative joint disease, degenerative disc disease and a herniated nucleus pulposus is due to an injury of the nature described by the Veteran as happening in service or another event or incident during her service. In particular, the VA examiner should address the Veteran's lay statement in October 2011 whereby she reported that she overexerted her spine for over 15 years as a Reservist working in a combat support hospital where she engaged in heavy lifting. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports, including those of in-service back injury and pain must be acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's statements, the examiner must provide a reason for doing so. The examiner is also advised that the lack of documentation of medical treatment for back symptoms may be considered in formulating the medical opinion, but the absence of evidence of treatment for back symptoms in the Veteran's service treatment records, standing alone, cannot serve as the basis for a negative opinion. The examiner must provide a rationale for the opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so. 3. After completing all indicated development, the RO should readjudicate the claim in light of all the evidence of record. If any benefit sought on appeal remains denied, a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and representative and they should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).