Citation Nr: 1336021 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-04 232A ) 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 L5-S1 disc bulge, claimed as a back injury. REPRESENTATION The Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from January to July 2001, and from October 2005 to September 2006, with additional periods of Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the RO in St. Petersburg, Florida, which, in pertinent part, denied service connection for a L5-S1 disc bulge, claimed as a back injury. In the March 2008 rating decision on appeal, service connection was granted for a right wrist lunotriquetral joint disability and bilateral Achilles' tendonitis (claimed as bilateral heel spurs). The Veteran initiated an appeal on the initial ratings assigned for those disabilities, but withdrew his appeal during a December 2009 hearing before a Decision Review Officer (DRO); therefore, the initial rating issues are not before the Board. A June 2013 submission from the Veteran included a statement regarding bilateral heel spurs. As mentioned, the bilateral heel spurs rating appeal was withdrawn in December 2009. As such, the evidence is not relevant, and the file need not be returned to the RO for initial consideration. See 38 C.F.R. § 20.1304(c) (2013). In December 2009, the Veteran testified at DRO hearing in support of the appeal. A transcript of the hearing testimony is of record. The Veteran was scheduled to appear at a personal hearing before a Member of the Board at the RO in June 2013 (Travel Board hearing). In a June 2013 submission, the Veteran cancelled the hearing and withdrew the Board hearing request. 38 C.F.R. § 20.704(d) (2013). In January 2012, the Veteran filed a statement regarding an increased rating for the service-connected bilateral heel spurs. That claim has not been developed or adjudicated by the Regional Office. Accordingly, the issue of increased rating for bilateral heel spurs is REFERRED to the RO for appropriate action. 38 C.F.R. § 19.9(b) (2013). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Board must remand this claim pursuant to duty to assist in providing a medical examination and medical opinion. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Although the Veteran was afforded a VA examination during the initial development of his claim, the VA examiner considered only aggravation during the October 2005 to September 2006 period of active service, and was not asked to consider aggravation during the May 2005 period of INACDUTRA. The Veteran's March 2007 claim indicated that he was seeking benefits due to an April 2005 back injury worsened by service. He testified in December 2009 that his back problem was due to an auto accident in March 2005 as part of his civilian job as a police officer. A May 2005 MRI report indicates that the Veteran had a disc bulge at the L5-S1 level of his spine. There is no record of the Veteran being in any duty status in March or April 2005. The Veteran's service personnel records contain a May 2005 line of duty memorandum indicating that the Veteran injured his low back on May 8, 2005, while performing physical fitness testing prior to mobilization. The Veteran reported that his back began to hurt badly with pain in his upper legs and buttocks and that he was unable to move without pain. He was not able to finish the physical fitness testing adequately at that time. The memorandum states that the Veteran reported that, on May 12, he sought attention from his family doctor and was referred to a chiropractor, then a neurosurgeon. Although the record is not clear, the Veteran served in a Reserve unit at that time and was not on active duty. This entry appears to have been related to a weekend drill, which is a form of inactive duty for training (INACDUTRA). The reported symptoms of radiating pain were first recorded coincident with that period of INACDUTRA and continued through his later period of active service from October 2005 to September 2006 and well past the filing of the current claim for service connection. This record is sufficient to raise the theory of aggravation of a preexisting disorder during a period of INACDUTRA. Although the Veteran was afforded a VA examination during the initial development of this claim, the examiner considered only aggravation during the October 2005 to September 2006 period of active service. The examiner was not asked to consider aggravation during the May 2005 period of INACDUTRA. For this reason, the Board concludes that an examination is warranted pursuant to VA's duty to assist. See McLendon, 20 Vet. App. at 81-82. Accordingly, the issue of service connection for a L5-S1 disc bulge, claimed as a low back injury, is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA spine examination to assist in determining the etiology of the current low back disability. After examination, the examiner should be asked to offer the following opinions: a. Was the L5-S1 disc bulge disorder as likely as not permanently worsened by the physical fitness training during the May 2005 period of INACDUTRA? b. If the L5-S1 disc bulge disorder was permanently worsened during the May 2005 period of INACDUTRA, was that worsening beyond the natural progression of the disorder? The relevant documents in the claims folder should be made available to the examiner. All indicated studies should be conducted, and the results reviewed before the final opinion. The examiner should provide a rationale for any opinion provided. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). 2. The RO should readjudicate the issue of service connection for a L5-S1 disc bulge. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2013). 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. 2013). _________________________________________________ J. PARKER 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) (2013).