Citation Nr: 1338028 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-02 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a low back disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The appellant (Veteran) served on active duty from August 1977 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal form a December 2009 rating decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO), which denied, amongst other issues, service connection for a low back disorder. In December 2012, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. 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 appellant, asserts that service connection is warranted for a low back disorder based upon service incurrence. He maintains that upon entrance into service, he was found to have a problem with his spine which was found to be nondisqualifying. He later injured his back in service picking up heavy gear. He claims to have had difficulty with his back since that time. It was noted on his entrance examination that he had scoliosis, not considered disqualifying. The Board notes that when no preexisting medical condition is noted upon entry into service, an appellant is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Accordingly, "[o]nce the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexisting and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness ... the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease." Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). This burden must be met by affirmative evidence demonstrating that there was no aggravation. See Id. The burden is not met by finding that the record contains insufficient evidence of aggravation. See Id. In this regard, it is not clear from the evidence of record as to whether the appellant's presently claimed back disorder preexisted service, and if so, if any increase in that disorder is due to the natural progress of the disease. The appellant was not offered a VA examination in connection with this claim. The Board acknowledges that the duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, a VA examination and opinion is necessary prior to final adjudication of the claim. Further, the appellant testified at his December 2012 videoconference hearing that the appellanr is in receipt of Social Security Administration (SSA) disability benefits related to his low back. A review of the record shows that the decision from the SSA and the medical records it considered in making its decision are not of record. VA has a duty to acquire both the SSA decision and the supporting medical records pertinent to the claim. Dixon v. Gober, 14 Vet. App. 168 (2000); Masors v. Derwinski, 2 Vet. App. 181 (1992). Since the appellant is seeking service connection for a low back disability and indicated that he was in receipt of SSA benefits related to his low back, the Board believes the SSA records are potentially relevant and must be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the RO. 2. Obtain a copy of any Social Security Administration decision regarding disability benefits for the Veteran. All the medical treatment records from the Social Security Administration that were considered in the Veteran's claim for disability benefits should be obtained and associated with the claims file. Any negative response should be addressed in the claims file. 3. Schedule a VA orthopedic examination to determine the nature, severity, and etiology of any current low back disorder the appellant may have. All indicated testing and studies should be made. The examiner should specifically address the following questions: (a) whether a low back disorder (scoliosis) clearly and unmistakably (i.e., obvious or manifest) preexisted service; (b) whether a low back disorder increased in severity during the appellant's active service; (c) if so, whether there is clear and unmistakable evidence that the disorder was not aggravated (i.e., permanently worsened) beyond the natural progression during or as a result of service; (d) if not, whether it is at least likely as not (a 50 percent probability or greater) the low back disorder had its onset in service or is otherwise medically related to the Veteran's service. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of all the evidence. If the benefit sought on appeal is not granted, the appellant should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ F. JUDGE FLOWERS 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).