Citation Nr: 1328811 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-19 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran had active duty service from June 26, 1977 to October 12, 1977 and from November 30, 1990 to May 16, 1991, with additional service in the National Guard. This matter is before the Board of Veterans Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which declined to reopen the Veteran's claim of entitlement to service connection for a low back disability on the basis that new and material evidence had not been received. The Veteran's initial service connection claim for a low back disability was denied in July 1997. He did not appeal that decision. Since that time, additional relevant official service department records have been obtained that had not been associated with the claims file when the July 1997 decision was made. Applicable regulations provide that under such circumstances, VA will reconsider the claim notwithstanding the general rule that requires the submission of new and material evidence to reopen a finally adjudicated claim. 38 C.F.R. § 3.156 (2012). The only service treatment record (STR) considered in the July 1997 decision was a discharge report dated from January 1991. The STRs associated with the file after July 1997 show an additional diagnosis, and that he complained of back pain in the months following discharge from the hospital. Accordingly, as these additional STRs are relevant to the claim and were not considered in the July 1997 decision, new and material evidence is not required to reopen the claim and it will be reconsidered on a de novo basis. 38 C.F.R. § 3.156(c) (2012). This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran has been provided two VA examinations for his low back, in January 1997 and in August 2003. Both of those examinations found him to have a normal spine. Since those examinations, radiologic evidence of degenerative changes has been obtained. The Veteran has also been diagnosed with lumbosacral disc disease. Accordingly, a medical opinion on whether these conditions were incurred in service should be obtained. McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative and request that he identify any additional treatment he has received for his low back disability. Make arrangements to obtain all identified treatment reports, including updated VA treatment records dated since March 2009. 2. Following completion of the above directive, schedule the Veteran for a VA examination of his spine. The claims folders, including relevant electronic records, should be reviewed by the examiner, as well as a copy of this Remand. All diagnostic tests should be conducted, and the report of examination should include discussion of the Veteran's medical history. The examiner should identify all current low back disorders found to be present. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., 50% or greater probability) that any current low back disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should acknowledge the service treatment records showing that the Veteran fell and hit his low back on a metal bed frame, and was hospitalized from December 27, 1990, to January 3, 1991. He was diagnosed with low back pain due to muscle strain. In February 1991, his low back pain continued, and he was diagnosed with lumbar disc strain. A complete explanatory rationale is requested to accompany the opinion. 3. Next, review the examination report to ensure that the examination report responds to the questions posed. If not, it must be returned to the examiner for corrective action. 4. Finally, after completing the directives and undertaking any additional development deemed necessary, readjudicate the claim on appeal on a de novo basis, pursuant to 38 C.F.R. § 3.156(c). If the benefit sought on appeal remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and afford them an appropriate amount of time for response. Thereafter, return the claims files to the Board for further appellate review. The Veteran 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). _________________________________________________ P.M. DILORENZO 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).