Citation Nr: 1752915 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-16 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a lower back disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1960 to September 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In March 2017, the Veteran and his spouse testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary 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. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). The Veteran contends that his current lower back disorder is related to an injury that occurred during his military service. Specifically, he alleges that, in approximately March 1964 while putting fuel into the wing of an airplane, the fuel nozzle got stuck and fuel began pouring out of it. He subsequently slipped on the fuel and fell off the wing of the airplane approximately six to seven feet onto the middle of his back. The Veteran further indicated that he believes he also hit his head on the pavement and was knocked unconscious as he remembers waking up to fellow soldiers standing over him. Additionally, he reported that he went to the hospital the next day since it was late at night when his injury occurred and he lived off of the base. He further stated that, once at the hospital, he was not examined and instead told to take a hot shower. The Veteran indicated that, due to his back pain, he was taken off of the flight line and put in a tire shop where he built tires for aircrafts. Moreover, he also reported that he did not experience any post-service injuries, to include any back injuries resulting from a motor vehicle accident. The Veteran and his spouse indicate that he continues to have back pain in the same area where the injury occurred. Therefore, he claims that service connection for a lower back disorder is warranted. The Veteran's service treatment records (STRs) reflect that clinical evaluations conducted in connection with examinations in September 1960 and September 1964 revealed that his spine was normal. He also denied swollen or painful joints at such examinations. However, the Veteran's DD Form 214 confirms that his military occupational specialty was Jet Engine Mechanic. Furthermore, during the March 2017 Board hearing, the Veteran's spouse testified that she married the Veteran while he was still in service in 1962. She further testified that she recalled when he injured his back after falling off the wing of an airplane because he continuously came home and complained about his back pain. Here, the Veteran's spouse noted that she remembered when the Veteran told her about his airplane injury, and, to her knowledge, he did not have any type of injury to his back following service. The Veteran's post-service private treatment records dated from April 2010 to November 2012 reveal complaints of low back pain and treatment for diagnoses of lumbar spinal stenosis and multilevel lumbar spondylosis. In the instant case, the Board finds that, in light of the Veteran's private treatment records showing a diagnosis of a lower back disorder; lay statements from the Veteran and his spouse regarding an in-service injury; confirmation of the Veteran's military occupational specialty as Jet Engine Mechanic; and the Veteran's and his spouse's report of a continuity of lower back symptomatology, a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of his lower back disorder. Furthermore, while on remand, the Veteran should be given an opportunity to identify any records relevant to his lower back disorder that have not been obtained. Thereafter, all identified records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his lower back disorder. The record, to include a complete copy of this remand, must be made available to the examiner. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. (A) The examiner must identify all lower back disorders found to be present. (B) For each currently diagnosed lower back disorder, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such disorder is related to the Veteran's active duty service, to include his back injury in March 1964 while fueling an airplane. For the purposes of rendering such opinion, the examiner should assume that the Veteran's in-service injury, while not documented in the record, occurred as he and his spouse described. The examiner should take into consideration all of the evidence of record, to include the STRs, post-service treatment records, and lay statements from the Veteran and his spouse concerning his in-service back injury, as well as his post-service symptomatology, accepted medical principles, and objective medical findings. All opinions expressed must be accompanied by supporting rationale. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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 2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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).