Citation Nr: 1751619 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 12-27 086A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a back disability, including lumbar strain, lumbar degenerative disc disease, and L4-L5 and L5-S1 herniated discs. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2007 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for lumbar degenerative disc disease and L4-L5 and L5-S1 herniated discs. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in June 2017. A copy of the hearing transcript has been reviewed and associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Throughout this appeal period, the Veteran has been diagnosed with a lumbar strain and a February 2012 Magnetic Resonance Imaging (MRI) scan of the lumbar spine revealed disc protrusions at the L4-4 and L5-S1 levels with moderate canal stenosis at the L4-5 level and encroachment of bilateral S1 nerve roots at the L5-S1 levels. A VA records review and medical opinion was provided in August 2012. The examiner indicated that the previously diagnosed lumbar degenerative disc disease with disc herniation and currently diagnosed lumbar sprain clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression during basic training. The examiner reasoned that there was no chronicity of complaints or care for said back disability. The Veteran subsequently testified at a hearing in June 2017. He indicated that his back problems started in service after he fell off of an obstacle course and landed on his back during boot camp. He went to a civilian doctor a month after separation from service and currently seeks treatment at the Richmond Spine Center and with a pain management specialist at the Connersville Hospital. Furthermore, the Veteran clarified during the hearing that after his injury during boot camp he relayed that he was in a motor vehicle accident prior to service when he was 17 years old. However, he testified that he went to the hospital because his daughter was in the car and he was examined and released without any reported injuries. He confirmed that when he entered service he did not have any back disabilities and has sought continuous treatment for his lower back since leaving service. After a review of the record, the Board finds that the AOJ did not obtain the Veteran's identified post-service treatment records, including records from the Richmond Spine Center and Connersville Hospital. Furthermore, during his VA examination in April 2010, the Veteran indicated that he sought outpatient treatment at the Nelson Clinic and Ireland Community Hospital following his injury in service. Accordingly, the Board finds that a remand is appropriate for the Veteran to identify all in-service and post-service treatment. Furthermore, a new VA examination is warranted to assess the additional evidence of record, including the Veteran's testimony that he did not have a back disability prior to service. Accordingly, the case is REMANDED for the following actions: 1. Send a letter to the Veteran and his representative requesting that he provide sufficient information, including the medical provider's name, location, and dates of treatment, and a signed and dated authorization, for all relevant private treatment relating to his lower back disability from April 2007 to the present. All efforts to obtain records should be associated with the claims file and the Veteran and his representative should be provided notification if any of the listed records are unavailable pursuant to 38 C.F.R. § 3.159(e). 2. After completion of the above, schedule the Veteran for a VA examination by an orthopedist or neurosurgeon to determine the etiology of his lower back disability. The claims folder, including this remand, must be reviewed by the examiner and such review should be noted in the examination report. The examiner is to identify all lumbar spine disabilities found on examination and identified during the pendency of this claim. For any diagnosed lumbar spine disability, the examiner should provide the following opinion: a. Is there clear and unmistakable evidence (undebatable) evidence that any lumbar spine disability preexisted the Veteran's military service? b. If the answer to (a) is yes, then is there clear and unmistakable evidence that the preexisting lumbar spine disability was NOT aggravated (i.e., permanently worsened) during active service? c. If the answer to (a) is no, then is it at least as likely as not that the Veteran's lumbar spine disability was incurred in and/or is otherwise the result of active military service, including his reported injury during boot camp? The examiner must provide a comprehensive rationale for each opinion provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. 2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant 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 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). _________________________________________________ ERIC S. LEBOFF 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) (2017).