Citation Nr: 1342029 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 11-19 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for spinal muscular atrophy. REPRESENTATION The Veteran is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from March 1953 to March 1955, with subsequent service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND During a November 2013 hearing with the undersigned Veterans Law Judge, the Veteran testified that he experienced lower extremity muscle weakness beginning in his period of active duty from March 1953 to March 1955. The Veteran also testified that his symptoms persisted and worsened until he first sought treatment in 1960. Ultimately, the Veteran was diagnosed with spinal muscular atrophy. The evidence of record demonstrated a current diagnosis of spinal muscular atrophy. The Veteran's assertions as to onset and course of his symptoms indicate an association between his alleged in-service symptoms and his current diagnosis. Based on the above, the Board finds that a remand is warranted in order to provide the Veteran a VA examination. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, following the Veteran's discharge from active duty in March 1955, the Veteran served in the Reserves. The Board found no indication that the RO undertook efforts to verify the Veteran's periods of Reserves service subsequent to March 1955, including determining whether such service was active or inactive duty for training (ACDUTRA/INACDUTRA). As such, the Board finds that a remand is warranted in order to verify such service. Further, the RO should attempt to obtain all of the Veteran's outstanding Reserve service treatment and service personnel records. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The RO should undertake efforts to verify the Veteran's periods of Reserves service after March 1955, including any periods of ACDUTRA or INACDUTRA. 2. The RO should contact the appropriate records depository in order to obtain all of the Veteran's outstanding Reserves service records, to include service treatment and personnel records. 3. The RO should then provide the Veteran a VA examination to address whether his current spinal muscular atrophy is etiologically related to his active duty. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. Based on a review of the Veteran's claims file, the results of the examination, and the Veteran's assertions as to the onset and course of the disability, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or higher) that the Veteran's spinal muscular atrophy was incurred in or due his active duty (March 1953 to March 1955) or a subsequent period of ACDUTRA (NOTE: By regulation, service connection is not available for diseases incurred in or due to INACDUTRA, therefore an opinion with respect to the etiological relationship between the Veteran's muscular spinal atrophy and his periods of INACDUTRA is not required). A thorough rationale must be provided for any opinion reached. The examiner should consider the Veteran competent to report symptoms like muscle weakness in service, and the examiner must consider those statements when providing an opinion. 4. The RO should notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 5. Once the above action has been completed, the RO must re-adjudicate the Veteran's claim on appeal, taking into consideration any newly acquired evidence. If the benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ 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) (2013).