Citation Nr: 1720155 Decision Date: 06/07/17 Archive Date: 06/21/17 DOCKET NO. 11-33 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a back condition. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1968 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge during a February 2017 Travel Board hearing. A transcript of the hearing has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, the Board finds that additional development is needed before the Veteran's claim on appeal can be decided. The Board notes that the Veteran was not afforded a VA examination in connection with his claim for service connection for a back condition. The United States Court of Appeals for Veterans Claims (Court) has held that a medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third element could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. 38 C.F.R. § 3.159 (c)(4). The threshold for establishing the third element is low, for there need only be evidence that "indicates" that there "may" be a nexus between the current disability and military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). During the February 2017 hearing, the Veteran provided competent lay evidence that he has had back pain and issues with his back ever since basic training. The Veteran's testimony coupled with the medical evidence of record is sufficient to indicate that there may be a nexus between the Veteran's service and his current reports of back pain. Thus, the Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of his back condition. See McLendon, supra. Additionally, attempts to identify and obtain any outstanding, current treatment records should be made before a decision is made in this case. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding VA treatment records that are not already associated with the claims file. All reasonable attempts should be made to obtain any identified records. 2. After completion of step #1 above, schedule the Veteran for VA examination to ascertain the nature and etiology of his back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's back disability manifested in service or is otherwise causally or etiologically related to the Veteran's military service, to include his reported symptomatology therein. The VA examiner should provide a detailed rationale for the opinion. If no opinion can be rendered concerning this claim without resorting to mere speculation, explain why this is not possible or feasible, such as clarifying whether the examiner simply is unable to comment since the limits of medical knowledge have been exhausted or, instead, for example, there are multiple possible etiologies with none more prevalent than another, or he needs further information to assist in making this nexus determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. 3. After completing all actions set forth above and any further action needed as a consequence of the above development, readjudicate the claim on appeal. If the benefit on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case and allow the appropriate time for response. Then return the case to the Board for further appellate review. The Veteran 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 2014). _________________________________________________ Nathaniel J. Doan 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 the appeal. 38 C.F.R. § 20.1100(b) (2016).