Citation Nr: 1327956 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-25 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to April 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, dated in September 2008. The case had been brokered to that RO by the Oakland, California, RO and jurisdiction is with the Oakland RO. In addition to the claims file, there is an electronic record contained in Virtual VA. 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 that further development is required before the claims of entitlement to service connection for neck and back disabilities are adjudicated. The Veteran has contended that his current back and neck disability is attributable to a November 1986 accident in service. He has submitted lay statements from a comrade and his mother documenting that he was hospitalized in service for injury at that time. As noted in the May 2010 supplemental statement of the case (SSOC) the Veteran's service treatment records show that he was treated for injury following a fall from his horse, and was hospitalized from November 26 to December 2, 1986. He reportedly fell on his back and struck his head with no loss of consciousness. He was treated for abdominal pain and a headache, and a small hematoma on his head. Neurological examination showed him to be intact as to cranial nerves, sensory and motor. He was sleepy and hazy but was discharged following several days with normal mental status. The discharge diagnosis was blunt trauma to abdomen and head with a small epidural hematoma. Service connection for head trauma was denied in July 1987, and the RO reconsidered but still denied the claim again in 1989. The current claim for back and neck disability was received in April 2008. The Veteran claims that he now suffers from lumbar spondylolysthesis, occipital and cervical subluxations and lower back and neck pain, as set forth in his VA claim 21-526. He cited to chiropractic treatment in 1991 and 1992 by an unknown provider. He also cited treatment by Dr. O., a chiropractor, from 1996 to present, in addition to treatment at "Immediate Care Medical Center" from 1994 to present. Dr. O. submitted records of treatment for the disabilities listed in the Veteran's claim since 1996. The Court has held that in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.). In addition, credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation is enough to satisfy the "low threshold" requirement that a disability "may be associated" with service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Under the "low threshold" standard of McLendon, an examination to determine if there is a nexus between a current low back and/or neck disability and the Veteran's service, particularly the aforementioned fall from a horse in service, is necessary. As the Veteran has certified in response to the statement of the case that he has no additional records or information to submit, VA need not seek any additional outstanding treatment records unless the Veteran indicates otherwise. Additionally, in August 2013 argument, the Veteran's representative urges that the headaches and symptoms manifested by the Veteran immediately following a fall on the back and head are consistent with the Veteran's currently reported back and neck disability. He submitted copies of treatment records and medical literature in support of his assertions. These should be reviewed by the examiner. Accordingly, the case is REMANDED for the following action: 1. The Veteran must be afforded a VA examination by a physician with the appropriate expertise to determine the etiology of any current low back and or neck disability. The Veteran should be properly notified of the examination and of the consequences of his failure to appear. His claims file, to include any pertinent records housed in the electronic claims file, must be reviewed by the examiner in conjunction with the examination. Based on review of the pertinent medical history, examination of the Veteran, and with consideration of sound medical principles, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that any low back and neck disability present at any time during the pendency of the claim is related to his active service, to specifically include the injury in November 1986 in particular. The examiner must explain the rationale for all opinions expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner must acknowledge and discuss the lay statements of record that the Veteran injured his low and neck back in 1986 in service after being thrown from a horse. 2. Thereafter, arrange for any further development deemed necessary. 3. Then, re-adjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. 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). _________________________________________________ BETHANY L. BUCK 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).