Citation Nr: 1752862 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-29 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran served in the Florida Army National Guard for approximately 33 years, including periods of active duty for training (ACDUTRA). The Veteran also served on active duty with the United States Army from February 1975 to February 1976, from June 1980 to January 1987, and from May 1992 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been 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 A remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. An April 2007 private medical record shows that X-rays of the Veteran's back revealed mild hypertrophic spur formation at the L1-L2, L2-L3, and L3-L4 levels, compatible with mild degenerative disc disease (DDD). During the September 2016 hearing, the Veteran testified that his back condition as diagnosed in April 2007 was aggravated by an incident that occurred on May 6, 2008, where the Veteran was riding in a military vehicle that hit a pothole and threw him up in the air. It is unclear as to whether the onset of the Veteran's back condition, which appears to be on or around April 2007, occurred during a period of active service. Regardless, the record does not contain evidence concerning any relation between an event or incident on or around April 2007 and the Veteran's back condition. The Veteran was afforded a VA examination in October 2010, which found that the Veteran had DDD and DJD of the lumbosacral spine. However, this examination did not discuss whether the Veteran's disability was more likely than not incurred or aggravated by an event or incident during the time of the Veteran's initial diagnosis in April 2007. Therefore, a VA medical opinion is required that addresses this nexus issue. Further, the Board requests an additional opinion as to whether the incident that occurred on May 6, 2008, aggravated the Veteran's back condition. While the record contains a November 2016 medical opinion linking the Veteran's back condition to service, the examination is of limited value as the examiner did not identify what particular incident of military service resulted in the Veteran's back disability. Similarly, the examiner did not provide a rationale for how he reached his conclusion. The Board also notes that while the record appears to contain the Veteran's active service medical records, as well as post-service VA treatment records, it does appear that National Guard service medical records may be outstanding. Accordingly, a remand is also necessary in this case in order to ensure that all outstanding relevant medical records have been obtained. To that end, the Veteran is once again encouraged to submit any outstanding medical records of which he is aware, or to identify where VA may seek to obtain such records. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records, as well as National Guard service medical records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After any additional documents are obtained and associated with the claims file, return the claims file to the VA examiner who conducted the October 2010 examination for the back. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the October 2010 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. The examiner is asked to provide an opinion as to the following: (a) Identify all current back disabilities associated with the Veteran. (b) Is it at least as likely as not that any identified back disability manifested during, or as a result of, active military service? (c) The examiner is also asked to opine on whether it is at least as likely as not that any period of the Veteran's active duty service aggravated any diagnosed disorder of the spine which preexisted that period of active duty service. In offering this opinion, the examiner is advised that the term "aggravation" is defined as a permanent worsening of the disorder, beyond its natural progression. In answering these questions, the examiner is asked to specifically discuss the April 2007 radiographic evidence of degenerative disc disease of the spine and the November 2016 opinion from the Veteran's private physician. A full rationale must be provided for any opinion offered. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. 3. Ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND so as to help avoid future remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action must be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing all indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded to the Board. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ DAVID L. WIGHT 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).