Citation Nr: 1337793 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 13-00 436A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disability REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to September 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The claims file was subsequently transferred to the RO in St. Petersburg, Florida. The Board notes that a VA Form 21-22a, Appointment of Individual as Claimant's Representative, received in October 2010 appointed Allen Gumpenberger of Alpha Veterans Disability Advocates as the Veteran's representative. In correspondence received in March 2013, an individual from Alpha Veterans Disability Advocates other than Mr. Gumpenberger attempted to revoke the power of attorney. As there is no indication that the Veteran or Mr. Gumpenberger ever attempted to revoke the October 2010 VA Form 21-22a, the Board still recognizes Mr. Gumpenberger as the Veteran's representative. 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 The Veteran seeks entitlement to service connection for a back disability, which he contends was incurred as a result of an injury sustained while on active duty in Vietnam. He further contends that he experienced continuity of back symptomatology since active duty service. In October 2010, the Veteran submitted two statements from Veterans he served with in Vietnam. One statement was from a combat field medic attached to the Veteran's infantry platoon who indicated that the Veteran fell in October 1969 while climbing up a hill carrying an M60 machine gun in the central highlands of Vietnam. The field medic further indicated that it was apparent that the Veteran was unable to continue on the patrol, and that he was medical evacuated via helicopter after being administered pain-relief medication. He claimed that the Veteran never returned to the field, although the field medic was never informed of the Veteran's status or of any further treatment he received afterward. The other statement was made by a serviceman purporting to have been medical evacuated via helicopter to An Khê District with the Veteran on October 23, 1969. He indicated that the Veteran fell with an M60 machine gun and was sent to sick bay upon his arrival in An Khê District. He stated that the helicopter which transported them to An Khê District was a resupply helicopter rather than a regular medical evacuation helicopter, so there would not have been any medical records kept on it. The serviceman further indicated that the Veteran was still in An Khê District when the serviceman's tour of overseas duty ended four days later on October 27, 1969. In September 2012, the Veteran submitted a narrative published to the Internet by the above serviceman. The narrative indicated that the Veteran injured his back on some rocks in October 1969. The Veteran contends that he has a current back disability due to the October 1969 fall injury. His DD Form 214 shows that he served as a Light Weapons Infantryman and received the Combat Infantryman Badge. Based on that award, the Board finds that the Veteran is a combat Veteran and that therefore his lay statements alone are sufficient to establish an in-service injury if consistent with the circumstance, conditions, or hardships of such service. Based on the evidence of record, the Board finds that the Veteran's statements regarding sustaining a back injury as a result of a fall in October 1969 and experiencing back pain after that injury are sufficient to establish those facts. 38 U.S.C.A. § 1154(b) (West 2002). The Veteran was provided with a VA spine examination in November 2012, at which time he was diagnosed as having degenerative disc disease of the lumbar spine. However, the examiner opined that the degenerative disc disease of the lumbar spine was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale for this opinion was that there was no evidence of in-service injury or complaints in the service treatment records, and no evidence to support the existence or chronicity of a low back disability since discharge. As discussed above, the Board finds that the Veteran's statements regarding sustaining a back injury as a result of a fall in October 1969 and experiencing back pain after that injury are sufficient to establish those facts. Moreover, his account of having injured his back as a result of a fall in October 1969 is corroborated by two other statements, one from the combat field medic who initially treated the injury and one from the serviceman who was medical evacuated with the Veteran to An Khê District. As such, the Board finds that the November 2012 VA examiner's statement that there was, "No evidence to support existence or chronicity of this problem," is inaccurate. The negative nexus opinion expressed in the November 2012 VA examination report is therefore based on an inaccurate factual premise and has no probative value on the question of whether the Veteran's current degenerative disc disease of the lumbar spine is related to service. See Reonal v. Brown, 5 Vet. App. 458 (1993) (an opinion based upon an inaccurate factual premise had no probative value.). Accordingly, the examination report must be returned to the examiner to obtain an addendum opinion which takes the Veteran's October 1969 fall and subsequent back pain into consideration. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all treatment records from September 2012 to the present from the Bay Pines VA Medical Center in Florida. All actions to obtain the requested records should be documented fully in the claims file. If they cannot be located or no such records exist, the Veteran should be notified in writing. 2. Thereafter, return the claims file to the November 2012 VA examiner who conducted the orthopedic examination of the Veteran's spine (or another suitable examiner if unavailable) to obtain an addendum medical opinion. Following a review of the claims file, to include service treatment records and post-service medical records, as well as the previous examination results and submitted statements, the examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's diagnosed degenerative disc disease of the lumbar spine is related to service. In rendering an opinion, the VA examiner should assume as credible the Veteran's reports that he sustained a back injury as a result of a fall in October 1969 and that he experienced pain after that injury, as well as any other history given by the Veteran regarding injury or aggravation to his back that is consistent with the circumstances, conditions or hardships of his combat service in Vietnam, even if there is no official record of such injury or aggravation. The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Any opinion expressed by the VA examiner must be accompanied by a complete rationale. If the VA examiner determines that a physical examination is necessary in order to provide the requested opinion, one should be scheduled. 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review after the Veteran has had an adequate opportunity to respond. 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 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).