Citation Nr: 1752296 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-08 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 1984. He also served in the Army Reserve from September 1984 to October 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for left knee and low back disabilities. In October 2015, the Board denied the Veteran's claim for a left knee disability but remanded the claim for a low back disability for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. As alluded to above, the Board remanded the claim for service connection for a low back disability in order for the RO/AMC to schedule the Veteran for an appropriate VA examination to determine the etiology of his low back disability. Accordingly, the Veteran was provided a VA examination in November 2015. Although the examiner diagnosed the Veteran with a lumbar strain, she, nonetheless, opined that it was not related to the Veteran's active duty from September 1981 to September 1984. Subsequent to the October 2015 Board remand, however, the Veteran's service treatment records (STRs), which were previously unavailable, including records from his period of service in the Reserves from September 1984 to September 2002, were obtained. The medical evidence of record shows that in addition to the complaints of back pain during active duty from September 1981 to September 1984, the Veteran was also involved in a motor vehicle accident (MVA) in September 1993. Moreover, a May 1999 STR shows that the Veteran was in a MVA in 1997 and injured his back. A February 2000 Physical Profile reflects that the Veteran had chronic back pain. Again in December 2000, the Veteran reported that he had back problems. A December 2003 record also indicates that the Veteran had recurrent back pain and had been prescribed narcotic pain medication. While difficult to read, it appears that the Veteran reported being involved in two motor vehicle accidents in the past six months. The December 2003 treatment record also noted that, in conjunction with a motor vehicle accident, the Veteran had x-rays and an MRI of his back and did physical therapy for six months. Active military service includes any period of active duty or active duty for training (ACDUTRA) during which the Veteran was disabled from disease or injury and any period of inactive duty training (INACDUTRA) during which the Veteran was disabled from injury - though not disease - or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. § 101 (21)-(24), 106, 1110 (West 2014); 38 C.F.R. §§ 3.6 (a), (d), 3.303(a) (2017); also Harris v. West, 13 Vet. App. 509 (2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Paulson v. Brown, 7 Vet. App. 466 (1995); Biggins v. Derwinski, 1 Vet. App. 474 (1991). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. So to the extent the Appellant is alleging he has disability as a result of injury or disease incurred or aggravated during his time in the reserves, it must be remembered that only "Veterans" are entitled to VA compensation under 38 U.S.C. § 1110 and 38 C.F.R. § 3.303(a). Thus, to establish his status as a "Veteran" based upon a period of ACDUTRA, he must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The same is true for establishing his entitlement to compensation for disability from injury, though not also disease, incurred or aggravated during his INACDUTRA. Id. Thus, the questions posed on remand to the VA examiner are modified, as set forth below. Further, verification of all periods of ACDUTRA and/or INACDUTRA should be accomplished on remand. Additional medical records should also be obtained, as set forth below. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate action to attempt to verify all of the Veteran's periods of ACDUTRA and INACDUTRA with the U.S. Army Reserves. 2. Following completion of the above, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA, or INACDUTRA. 3. Make arrangements to obtain the Veteran's VA treatment records, dated since November 2015. 4. Make arrangements to obtain the complete medical records associated with the Veteran's motor vehicle accidents, to include in 1993, 1997, and 2003. 5. Thereafter, upon receipt of all additional records, schedule an appropriate VA compensation examination to assist in determining the nature and etiology of the Veteran's claimed low back disorder. The entire claims file and a copy of this REMAND must be made available to the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. After eliciting a full history, conducting a complete review of the claims file, performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner must diagnose and describe all current low back disorders found to be present. The examiner should offer an opinion as to following questions: (a) Whether it is at least as likely as not (50% or greater probability) that any currently diagnosed low back disorder had its clinical onset during the Veteran's period of active duty service from September 1981 to September 1984 or is related to any incident of that service? In providing this opinion, the examiner should consider the service treatment records showing treatment for back pain dated February 16, 1982; September 9, 1982 (Report of Medical History); and March 8, 1983. (b) Whether it is at least as likely as not (50% or greater probability) that any currently diagnosed low back disorder had its clinical onset during a period of ACDUTRA or INACDUTRA or is related to any incident of that service. In providing this opinion, the examiner should consider the service treatment records showing treatment for back pain, as follows: Initial Medical Review - Annual Medical Certificate, dated March 20, 1999; Physical Profile, dated February 16, 2000; Report of Medical History, dated December 2, 2000; and Report of Medical History, dated December 23, 2003. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 6. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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. §§ 5109B, 7112 (West 2014). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).