Citation Nr: 1339087 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-34 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for lumbar spondylosis with L4-L5 disc bulging and spinal stenosis. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD A. Ozger, Associate Counsel INTRODUCTION The Veteran served on active duty from February to June 2005, and from September 2005 to August 2007, with subsequent service in the Iowa Army National Guard. His awards and decorations include, among others, Iraq Campaign Medal, Combat Action Badge, and Armed Forces Reserve Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The claims folder includes a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) appointing the Veterans of Foreign Wars of the United States as the Veteran's representative, dated July 2009. However, in August 2010, the Veteran submitted a new VA Form 21-22 in favor of Vietnam Veterans of America, which effectively revoked the Veterans of Foreign Wars of the United States as the Veteran's representative. As such, the Vietnam Veterans of America is noted to be the Veteran's representative of record, as stated on the title page. 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 Although the Board regrets additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran's DD-214 reflects that he was transferred to the Iowa Army National Guard upon his discharge from active duty in August 2007. A March 2008 Statement of Medical Examination and Duty Status reveals that the Veteran suffered a strain/sprain of his back. The report shows that the Veteran was on active duty at the time of the injury and that the injury took place in January 2008. While there is an August 2008 VA examination and opinion of record, this report failed to take into consideration the injury the Veteran was noted to have in January 2008 while on active duty. The Board, therefore, finds that another examination and opinion is needed to determine whether the Veteran has a current back disability which is due to active military service. In this regard, the Board notes that post-service, the Veteran reports having back pain in service. He attributed the back pain to various activities of service or the cumulative effects of the activities of service (i.e., wearing heavy equipment/body armor, riding in heavy combat vehicles in Iraq). In light of the foregoing, the claim of service connection for a back disability is remanded for the following actions: 1. Schedule the Veteran for a VA examination to determine the etiology of the Veteran's current back disability. The examiner should state whether it is at least as likely as not (at least a 50-50 probability) that the Veteran's current back disability is related to his active service from February 2005 to June 2005, September 2005 to August 2007 and/or due to the January 2008 injury while he was on active duty. In giving this opinion, the examiner should take into consideration the lay statements of record indicating that the Veteran had back pain in service due to wearing heavy equipment/body armor, and riding in heavy combat vehicles in Iraq. The examiner should also take into consideration the March 2008 Statement of Medical Examination and Duty Status, and the service records. The examiner should also note the diagnosis of myofascial back strain and x-ray studies showing lumbar spondylosis with L4-5 disc bulging and spinal stenosis approximately a year following the Veteran's discharge from service. The examiner should state whether it is at least as likely as not (at least a 50-50 probability) that these diagnoses are related to the Veteran's periods of service from February to June 2005, September 2005 to August 2007 and/or his injury during active duty in January 2008. In giving this opinion, the examiner should take into consideration the lay statements of record indicating that the Veteran had back pain in service due to wearing heavy equipment/body armor, and riding in heavy combat vehicles in Iraq. The examiner should also take into consideration the March 2008 Statement of Medical Examination and Duty Status, and the service records. A complete rationale should be given for all opinions given. If an opinion cannot be given without resort to speculation, the examiner should give the reasons why such conclusion was reached. The examiner should state whether the requested opinion is outside of his medical expertise or whether he needed additional information in order to give the requested opinion. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). _________________________________________________ K. OSBORNE 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).