Citation Nr: 1428048 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 11-20 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a degenerative disc disease of the lumbar spine, status post partial discectomy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to August 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota. The Veteran disagreed with a December 2010 rating decision regarding the effective date assigned for an increased rating of 30 percent for his service-connected anxiety disorder. The Veteran asserted that the effective date should be February 11, 2010. By rating action dated in January 2011, the RO awarded the Veteran and effective date of February 11, 2010 for the assignment of a 30 percent rating. Accordingly, a full grant was made regarding the Veteran's effective date claim and there is no effective date claim currently pending. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a low back condition. He asserts that his back condition is due to wear and tear on his back from when he was a combat soldier in the Persian Gulf War. He maintains that this was due to the cramped conditions in a tank, the heavy weaponry he wore, and from jumping up and down off of tanks. He also reported that he carried a heavy tank track. In a January 2011 letter the Veteran's parents stated that when the Veteran was involved with Operation Desert Storm he wrote to them several times telling them about the pain he was suffering in his lower to mid back. He said at that time that he felt that the pain might be due to the fact that he had to jump on and off his tank, and also that the inside of the tank was pretty close quarters. It was not possible to stretch out when the spasms would occur. The Veteran's uncle submitted a January 2011 letter in support of the Veteran's claim. The uncle stated that he was a retired Marine hospital corpsman. He reported that the Veteran contacted him on several occasions after his back became an issue. The Veteran said that he sustained his back injury mounting and dismounting tanks, driving over rough terrain and working and living in very cramped quarters, which never allowed his back to properly heal. The uncle opined that the Veteran's back injury continued to bother him throughout his military service and has been ongoing problem since his discharge. A VA physician noted on an October 2010 VA treatment record that he last saw the Veteran in April 2010. Additionally the October 2010 VA treatment record states that the Veteran was hospitalized in September 2010 for back pain. Although the notation is not specifically clear, it appears to indicate that the hospitalization was at a VA facility. The April 2010 VA treatment records and the September 2010 hospitalization records are not contained in the file. These records should be obtained. It is not clear from the record when the Veteran first received VA medical treatment for his back. Copies of all VA treatment records should be requested since the Veteran's discharge from service in August 1993. The record contains a July 2004 private operation report regarding low back surgery. The report notes that the Veteran had failed nonoperative treatment. The records of private treatment for the Veteran's back disability before and after the July 2004 surgery should be requested. The Veteran was provide d with a VA examination in March 2006 to obtain an opinion as to whether the Veteran's current low back disability was related to his period of service. Following examination, the examiner found that the Veteran's low back diability was less likely than not related to the Veteran's active duty service. The fundamental basis of the VA examiner's opinion was that there was no evidence of treatment in service or for many years thereafter for a low back disability. The Board notes, however, that the Veteran received the Combat Action Ribbon. It is further noted that he has stated that he experienced back pain in service particularly during combat operations in Operation Desert Storm. Consequently, the VA physician should have accepted the Veteran's reports of back pain during service to be true. See 38 U.S.C.A. § 1154(b) (West 2002). Thus, additional examination is required. Accordingly, the case is REMANDED for the following action: 1. Request copies of the Veteran's VA treatment records, including hospitalization and outpatient records, dated from August 22, 1993 to present. All records obtained should be associated with the Veteran's claims file. 2. Ask the Veteran to provide information and completed authorization release forms for all private medical treatment for his low back that has not already been submitted. This should include authorization for Dr. Amir Mehbod for records of treatment prior to, and subsequent to, the July 2004 lumbar surgery. All records/responses received should be associated with the claims file. All efforts to obtain the records should be fully documented, and all records and/or responses received should be associated with the claims file. If, after making reasonable efforts to obtain named records the AOJ is unable to secure same, inform the Veteran that he is ultimately responsible for providing the evidence. 3. When the above actions have been accomplished the Veteran's claims files should be provided to the appropriate physician to obtain an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) the Veteran's current low back disability is related to the Veteran's reports of back pain during service. For the purposes of rendering a nexus opinion, the examiner should assume as true the Veteran's current reports of back pain during service. A clear rationale for the opinion must be provided by the VA physician. If, but only if, the examiner deems it necessary to conduct an examination of the Veteran for purposes of rendering such an opinion, such examination should be scheduled. 4. Thereafter, readjudicate the Veteran's claim. If the benefit on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. The Veteran and his representative should be provided an appropriate period to respond before the case is returned to the Board. 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. 2013). _________________________________________________ MICHAEL A. PAPPAS 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).