Citation Nr: 1506813 Decision Date: 02/13/15 Archive Date: 02/18/15 DOCKET NO. 13-03 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 2011 by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Board hearing in December 2013 before the undersigned Acting Veterans Law Judge. A transcript of the proceeding has been associated with the electronic claims file. The Virtual VA paperless claims processing system contains the transcript from the December 2013 Board hearing. Other documents on the Virtual VA paperless claims processing system are either duplicative of the evidence of record or not pertinent to the present appeal. The Veterans Benefits Management System (VBMS) does not contain any documents at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development is warranted with respect to the Veteran's claim. The Veteran has claimed that he injured his back in service. Specifically, he claimed that during his service aboard the USS Moale in 1966, he injured his back when the ship hit a wave and he was thrown against a steel stanchion. The Veteran indicated that he was treated for his back injury in sick bay, and filled out an accident report with his chief gunner describing the incident. The Veteran also claimed that his duties as a gunner lifting heavy ammunition further damaged his back. The Veteran's service treatment records are silent regarding this incident; there are no service treatment records documenting any complaints of or treatment for any back injury. The Veteran's back was evaluated as normal on his separation examination and his separation report of medical history was negative for complaints regarding the back. The first record of post-service treatment for the back is in 2003. However, during his December 2013 Board hearing, the Veteran contended that he first sought treatment for his back within six months to one year post-service. The Veteran testified that these treatment records were no longer available because the physicians were deceased. The Veteran has been diagnosed with degenerative disc disease of the lumbar spine, and he underwent a lumbar laminectomy in November 2008. In March 2010, the Veteran submitted a buddy statement from a crew member on the USS Moale. This statement corroborated his account of the incident in which he injured his back. The Veteran also submitted buddy statements in April 2010, which noted his complaints of back pain for the past 30 years. In private medical opinions dated in April 2010, Dr. J.S. found that the Veteran's injuries sustained as a result of the incident in service described by the Veteran likely led to his current back disability. During the Veteran's December 2013 Board hearing, the Veteran's representative argued that in order to comply with the duty to assist, the AOJ should obtain the Veteran's service personnel records, to include the deck logs from his service aboard the USS Moale (DD-693). The Veteran's representative contended that these records could contain information relevant to the Veteran's claimed injury in service, including the accident report describing the incident. Therefore, on remand the AOJ must attempt to obtain the Veteran's service personnel records, to include any deck logs from his service aboard the USS Moale. Finally, the Board observes that the Veteran has not yet been afforded a VA examination for his claimed back disability. Under the duty to assist, the Veteran should be afforded a VA examination with a medical opinion regarding the etiology of any currently diagnosed back disability. While on remand, updated treatment records must be obtained. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any personnel records, to include the deck logs from the Veteran's service about the USS Moale, and associate them with the claims file. Perform any and all follow-up as necessary, and document negative results. 2. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. After the above development has been completed to the extent possible, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current back disability, to include degenerative disc disease. The claims folder, including a copy of this remand, must be made available to the examiner, and the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary should be conducted, to include X-ray imaging. The examiner is asked to: (a) Determine whether the Veteran has a currently diagnosed back disability, to include degenerative disc disease. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any diagnosed current back disability is etiologically related to the Veteran's active service, to include the injury to his back in 1966 while serving aboard the USS Moale and frequently lifting heavy ammunition. In rendering the requested opinion, the examiner should address the private positive nexus opinions dated in April 2010 from Dr. J.S. The examiner should also note and discuss the buddy statements dated in March 2010 and April 2010. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 4. After the development has been completed, adjudicate the claim. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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 2014). _________________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).