Citation Nr: 1801099 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-18 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2010 to February 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2011 rating decision of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA). A hearing was held in May 2017 before the undersigned. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for a back disability. She claims she experiences chronic back pain which began during basic training for the Army. A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by active service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). The term "noted" refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). When no preexisting condition is noted upon examination for entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness under 38 U.S.C. § 1111 , there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id. When the presumption of soundness is not rebutted, the claim must be treated as a direct service connection claim. A copy of the Veteran's service entry medical examination is of record. This examination, performed in May 2010, reflects the examiner's notation that the veteran's spine and other musculoskeletal elements were normal. Thus, the presumption of soundness attaches in this case with respect to a back disability and the evidentiary burden shifts to VA. Wagner. The evidence of record reflects that in December 2010, during basic training, the Veteran experienced back pain, sought medical care, and was examined. X-rays and an MRI were obtained. The MRI detected a disc bulge at her L1-S1 spinal joint. On seeking treatment in December 2010, the Veteran provided medical history of previously experiencing back pain within the past year. In May 2017, the Veteran testified that, prior to service, she participated in high school sports. She experienced back pain, saw a doctor, and was treated with over the counter pain medication. She recovered fully and resumed participation in athletic activities. She testified that she did not enter service with symptoms of a chronic back disability. The Veteran is presumed sound on her entrance into service. VA has not met the burden of showing by clear and unmistakable evidence both that the Veteran's back disability preexisted service and was not aggravated during service. This is based on a lack of any medical evidence showing a diagnosed back disability prior to service and the records in service showing back complaints. Accordingly, the salient questions in this case are whether the Veteran has any current back disability, and if so, whether the condition is directly related to her military service. VA is required to provide an examination or obtain a medical opinion when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was separated from service due to a back injury. The VA provided a General Medical examination in July 2011; however, the Veteran's back disability has not been recently examined and there is no evidence evaluating her current back condition. The Veteran is competent to report her symptoms (back pain) but does not have the expertise to make a diagnosis of a back disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The claim for service connection cannot be decided on the evidence of record. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine if she has a current lumbar spine disability and, if so, if it is related to her military service. The examiner must be instructed that because no back disability was clinically noted on the Veteran's military entrance examination, the Veteran is presumed sound at entrance into the military as to her back and the examiner must disregard any evidence suggesting the Veteran had any preexisting back disability prior to military service. The examiner must review the claims file and this remand; consideration of such should be reflected in the opinion report. The examiner is to provide the following opinions: (i) Whether the veteran has a current back disability. (ii)Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability is caused by or initially manifested in service. Facts and medical principles relied on to arrive at an opinion should be set forth. 2. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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. §§ 5109B, 7112. _________________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).