Citation Nr: 1333114 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 07-22 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to May 1970, with subsequent service in the Kentucky Air National Guard, to include active duty from November 2003 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana. This appeal was processed using the VBMS and Virtual VA paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The issue of entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder, has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that his low back disability is the result of carrying heavy equipment during active duty, to include the periods from July 1967 to May 1970 and from November 2003 to April 2004. In addition, the Veteran claims that he injured his back when he fell multiple times on ice during active duty in Kyrgyzstan from November 2003 to April 2004. In May 2011, the Veteran underwent VA examination in connection with his claim. The VA examiner opined that it was less likely than not that the Veteran's low back disability was caused by, a result of, or aggravated by carrying heavy loads and/or a fall in service. The VA examiner based the opinion on the service treatment records and VA treatment records showing a history of back pain as far back as 2000, which was prior to the Veteran's active duty from November 2003 to April 2004. In addition, the VA examiner noted that the service treatment records did not support complaints of back pain during this period and/or any event that could have made a back condition worse. As such, the VA examiner found the records did not support a back condition that came about as a result of lifting heavy loads and/or a fall during service. Upon review, the Board finds the May 2011 VA examination and opinion inadequate for purposes of determining service connection. First, it does not appear that the VA examiner considered the Veteran's first period of active duty from July 1967 to May 1970 when addressing the Veteran's lay statements and providing the opinion. Rather, the VA examiner stated that the period of concern was from November 2003 to April 2004. Therefore, the Board finds the VA examiner's opinion is based upon an incomplete or inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). In addition, the VA examiner based the opinion on the lack of evidence reflecting complaints of back pain and/or injuries incurred during active duty. In this respect, the Veteran is competent to report in-service symptoms and experiences, such as symptoms of back pain and falling on ice, and the Veteran's buddy has submitted a statement supporting the Veteran's injuries and symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, in order to satisfy VA's duty to assist, the Board finds that a remand is warranted in order to obtain an additional examination and opinion. 38 U.S.C.A. §§ 5103A, 5107(a) (West 2002); 38 C.F.R. § 3.159 (2013). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the etiology of any low back disability. The claims file, Virtual VA, VBMS, and a copy of this remand must be made available to the examiner for review in conjunction with the examination. After review of the record, and with consideration of the Veteran's lay statements, the VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current low back disability is related to active duty, to include the periods from July 1967 to May 1970 and from November 2003 to April 2004. In rendering the requested opinion, the examiner should address the Veteran's assertions regarding carrying heavy loads during both periods of active duty as well as his claims of falling on ice during his active duty in Kyrgyzstan from November 2003 to April 2004. The examiner should also note the February 2003 service treatment record reflecting that the Veteran was treated for pneumonia earlier that month, which the Veteran claims occurred at the same time as his back injury, and that a VA treatment record shows the Veteran complained of chronic back pain shortly after his return from Kyrgyzstan. A complete rationale for any opinion expressed must be included in the examination report. 2. After the development requested above has been completed, re-adjudicate the claim of entitlement to service connection for a low back disability. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond before the case is returned to the Board for 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). _________________________________________________ U. R. POWELL 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).