Citation Nr: 1629690 Decision Date: 07/26/16 Archive Date: 08/04/16 DOCKET NO. 12-03 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for chronic pain. 3. Entitlement to service connection for depression, to include as secondary to lumbar spine disability and chronic pain. 4. Entitlement to nonservice-connected pension. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran's DD214 reflects that the Veteran served on active duty from June 1986 to September 1986, and was then transferred to the United States Army National Guard, with reserve obligation termination date of March 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision of the Albuquerque, New Mexico, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In his Substantive Appeal, the Veteran indicated that he participated in the National Guard from 1986 to 1992. Worker's compensation records reflect that the Veteran injured his low back in non-military employment in September 1989. The Veteran indicated, by a November 2009 statement, that after his 1989 accident, he continued attending [National Guard] drills and performing duties as senior gunner, loading, preparing and firing the chaparral missile, and performing physical training; he stated that these actions worsened his low back condition. He stated that he notified his commander of his 1989 accident and was put on inactive status, after which he felt depressed due to his medical conditions which prevented him from working and participating in the National Guard. The record contains an October 1989 letter from P.A.-C A.C., indicating that due to the Veteran's 1989 back injury, he is "not fit" for National Guard participation. The Veteran has submitted an August 2011 letter from Dr. B.D., his treating physician, which states that the Veteran further injured his back after the 1989 injury by participating in the National Guard. Initially, the Board notes that further development is needed to determine the dates of the Veteran's ACDUTRA and/or INACDUTRA, and to ensure there are no outstanding personnel or treatment records from ACDUTRA and INACDUTRA participation. The STRs contained in the record pertain to the Veteran's June 1986 to September 1986 active duty period of service only. Upon remand, VA examinations are also needed. See Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); 38 C.F.R. § 4.2 (2015). The VA examiner will be asked to opine whether the Veteran suffers from a low back, chronic pain, and/or depression disability which is related to active service or resulted from disease or injury incurred or aggravated while performing ACDUTRA or INACDUTRA. As a threshold requirement for nonservice-connected pension benefits, the Veteran must have had wartime service. Specifically, in order for a veteran to be entitled to pension benefits, the veteran must have served in the active military, naval or air service for 90 days or more during a period of war, or commencing or ending during a period of war. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3). Active military, naval, or air service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A § 101(24) (West 2014); 38 C.F.R. § 3.6(a). The Veteran contends that his low back injury was aggravated by his ACDUTRA and/or INACDUTRA participation and he went to inactive status due to his medical condition. As the Veteran's dates of ACDUTRA and/or INACDUTRA participation and existence of outstanding records pertaining to such are unclear, and the issue of service connection for disabilities to include the low back disability are pending, the issue of entitlement to nonservice-connected pension is deferred. Accordingly, the case is REMANDED for the following action: 1. Determine the Veteran's periods of ACDUTRA or INACDUTRA. 2. Conduct a search for any outstanding personnel and treatment records from the Veteran's ACDUTRA and/or INACDUTRA participation, and associate all located records with the claims file. 3. After the above development has been completed, schedule the Veteran for a VA examination by an appropriate medical professional(s) to evaluate his claims for low back, chronic pain, and depression disabilities. The examiner must review the entire claims file. The examiner is to diagnose any current lumbar spine, chronic pain, and/or depression disability. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current disability (low back, chronic pain, and/or depression) is related to his active service (from June 1986 to September 1986) or was incurred or aggravated during a period of ACDUTRA or INACDUTRA. In particular, the examiner is to address whether the Veteran's September 1989 low back injury was aggravated while performing ACDUTRA or INACDUTRA. The examiner should also address whether any current depression was caused by or aggravated by any lumbar spine and/or chronic pain disability. If such aggravation is found, the examiner must attempt to determine a baseline level of severity of the depression prior to aggravation by any lumbar spine and/or chronic pain disability. The term "aggravation" means a chronic increase in the claimed disability; as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Finally, after conducting any other development deemed necessary, readjudicate the appeal. If any of the benefits sought remain denied, issue 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 the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). _________________________________________________ JAMES G. REINHART 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) (2015).