Citation Nr: 1336371 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-29 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a lumbar spine disability, claimed as low back pain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from October 1966 to October 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of December 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A hearing before the undersigned Acting Veterans Law Judge was held at the RO in May 2011. The hearing transcript has been associated with the claims file. The Board denied service connection for a lumbar spine disability in a December 2011 decision. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In a March 2013 memorandum decision, the Court vacated the Board's denial of service connection for a lumbar spine disability and remanded the matter to the Board for readjudication. 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 In its March 2013 Memorandum Decision, the Court held that the Board erred three times in its December 2011 decision. First, the Court concluded that the Board made the unsubstantiated medical conclusion that the Veteran's claimed in-service low back injury and pain were serious enough that he would have sought treatment during active duty, he would have reported them at separation, and the residuals of the injury would have been noted during the separation examination. Second, the Court concluded that the Board failed to consider statements by the Veteran explaining the lack of evidence of low back complaints during active duty and at separation, and thus erred in basing its negative credibility determination on the absence of medical evidence suggesting a fractured coccyx. Further, the Court found that the Board failed to address the Veteran's statements explaining gaps in the service treatment records, or his statements that post-service private doctors diagnosed him with 2 fractures of the coccyx - one related to a post-service fall and another that predated that injury, even though the private doctors in question informed VA that the Veteran's records were unavailable because records were destroyed after 7 years. Third, the Court concluded that the due to the above errors, it doubted the Board's finding that a positive November 2009 medical opinion was not probative because it was based solely on the Veteran's own history. In the November 2009 statement, the Veteran's private physician reported that he had been treating the Veteran for 40 years, since 2 months after the Veteran's separation from service, and that the Veteran's low back pain began after he was kicked in the sacral area by his drill instructor during basic training. In light of the Court's finding with respect to the November 2009 medical opinion, the Board finds that further development of the Veteran's appeal is warranted. Specifically, the Board reiterates the Court's prior case law in noting that the threshold for finding a link between current disability and service is low for the purposes of providing a medical examination. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006). McLendon held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an in-service event, injury or disease, or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, remand is necessary in order for the RO to obtain a VA medical examination and nexus opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159 (2013). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of any disability of the lumbar spine that may be present. The claims file must be made available to the examiner. Following a review of the relevant medical evidence in the claims file, the medical history as noted in the claims file, and the results of the clinical evaluation and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater likelihood) that any currently diagnosed lumbar spine disability is related to the Veteran's period of active service, to include his asserted in-service injuries (kick in the sacral area and/or picking up heavy boxes of ammunition). The examiner should provide a rationale for any opinion expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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. _________________________________________________ J. MACIEROWSKI KIRBY Acting 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).