Citation Nr: 1332738 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 07-38 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to January 1977. He had additional service with the Mississippi Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In an October 2011 decision, the Board denied the Veteran's claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In a February 2013 memorandum decision, the Court vacated and remanded that Board decision for further proceedings consistent with its decision. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND The Veteran claims that his low back disability is the result of an in-service injury during which he fell between a jeep and a trailer during field training and sustained a twisting injury to his back. He asserts that at the same time he injured his knees, which are service-connected. He further asserts that, following the injury, he continued to have back pain but did not believe that it was anything serious. Lastly, he acknowledges that he injured his back after service in 1993, but asserts that the initial injury occurred in service. Treatment records from the Veteran's period of active service show treatment for numerous problems, including knee pain, but are negative for complaints or clinical findings relating to any low back problems. During his separation examination in November 1976, he denied a history of back problems and clinical evaluation of the spine was normal. Thereafter, treatment records from his period of National Guard service show that, during examinations in March 1980, February 1985, March 1989, and July 1993, he denied a history of back problems and his spine was found to be normal upon clinical evaluation. However, treatment records dated from February 1995 to July 1997 show that he was given a profile and physical restrictions due to a back disability stemming from a work-related back injury. Private medical records dated from November 1993 to October 1995 show that, while working at a shipyard in November 1993, the Veteran sustained a lifting injury to his back. He presented for treatment in November 1993 with complaints of low back pain and right leg pain since a work-related injury. At that time, his past medical history was noted to be completely negative and he attributed his symptoms to a work-related injury. MRI and x-ray imaging of the spine revealed generalized mild spinal stenosis, slight lumbar scoliosis with mild degenerative changes, and a disc herniation. In December 1993, he was admitted for a one-month history of low back pain with right lower extremity radicular symptoms secondary to a work-related injury. It was again noted that his past medical history was negative and he attributed his symptoms to a November 1993 work-related injury. A lumbar myelogram revealed a herniated nucleus pulposus at L3-4 on the right with rostral migration of a free fragment. In January 1994, the treating physician indicated a belief that the symptoms of back pain and right leg pain were secondary to a herniated disc at L3-4 on the right side. In February 1994, the Veteran underwent an L3-4 micro-discectomy. VA medical records dated from May 2001 to October 2007 show infrequent complaints of chronic back pain. In May 2001, he complained of low back pain that he had been experiencing since 1993. The Veteran has not yet been provided a VA examination for his claim. While the service medical records do not show that he suffered an injury to the low back and the post-service medical records show that he sustained a work-related back injury, the Board finds the Veteran competent as to his statement of history of injury during service with continuing symptoms since discharge. While that lay evidence is not sufficient to award service connection, it does indicate that the Veteran's low back disability may be associated with an in-service injury. Thus, the Board finds that he should be provided a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4) (2013). Prior to the examination, any outstanding VA medical records should be obtained. The record contains treatment notes from the Biloxi VA Medical Center (VAMC), including the Pensacola Joint Ambulatory Care Center, through August 2012. Thus, any treatment notes since that time should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain any treatment notes from the Biloxi VAMC, including the Pensacola Joint Ambulatory Care Center, since August 2012. 2. Then, schedule the Veteran for a VA examination to determine whether there is any relationship between his low back disability and his period of active service. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's low back disability had its onset in or is causally related to active service. The examiner should consider the Veteran's lay statements regarding in-service injury and symptoms since active service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner should also consider the post-service medical records showing a work-related back injury in 1993. The examiner should provide a rationale for all opinions. The examiner should review the claims file and the examination report should note that review. 3. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).