Citation Nr: 1803845 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-04 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran had active military service from July 1960 to March 1964. The claim comes to the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the VA Regional Office (RO). The Veteran was provided with a travel Board hearing in June 2016. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds additional development must be undertaken prior to adjudication of the Veteran's claim for service connection for back strain. The record indicates that the Veteran has been diagnosed with back conditions, including the following: subluxation complex at multiple levels in the thoracic cervical region; herniated lumbar disc, L5-S1, with radiculitis; cervical-dorsal myositis with somatic dysfunction; lumbar subluxation; degeneration of the lumbar or lumbosacral disc; and sciatica. See private treatment records from December 1995 and April 1999. The Veteran claims that while onboard the USS Oriskany in approximately 1963, a box of bolts fell off of a shelf and pinned him to a railing. He contends that he was examined by a corpsman, and was provided ice packs for his swollen low back. While he was resting, he claims that his chief came to see him and told him to get back to work. The Veteran states that he did not have proper rest or healing time and has suffered with back pain continuously since service as a result. See June 2016 Board hearing. Although the Veteran's service treatment records are negative for complaints of or treatment for a low back injury, the Veteran has submitted multiple written statements from family and former military colleagues regarding his low back injury in service. In a February 2010 statement, the Veteran's brother, who also served on the same ship with the Veteran for a couple of years, stated that he remembers when the Veteran was in extreme pain due to his low back injury. He remembers the bruises on the Veteran's low back from a tray of bolts falling on him. In a June 2011 written statement, a former military colleague noted that he fully recalled a box of bolts falling on the Veteran's back. He stated that the Veteran went to sick bay and was given ice. In another written statement from a former military colleague, the colleague stated that he remembers when the Veteran had a box of bolts fall and pin him against a rail. He stated that the Veteran was the only person in the sleeping compartment allowed to have a piece of plywood under his mattress on his rack for back support. The Board finds that the Veteran should be afforded a VA medical examination to determine the nature and etiology of his back condition. An examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The requirement that the evidence of record "indicates" that a disability, or persistent or recurrent symptoms of a disability, "may be associated" with the Veteran's service establishes "a low threshold." McLendon, 20 Vet. App. At 83. As the Veteran has raised the argument that his back condition is related to an injury in service, and as the record evidence contains multiple written statements from people who remember the Veteran's injury while in service, the Board finds that a VA medical examination is needed in order to address these contentions. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his claimed back condition. The electronic claims file must be made available to, and reviewed by, the examiner in conjunction with the examination. All indicated tests must be done, and all findings reported in detail. Based on a review of the record and examination and interview of the Veteran, the examiner should provide an opinion responding to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disorder, including diagnoses of subluxation complex at multiple levels in the thoracic region, herniated lumbar disc, L5-S1, with radiculitis, cervical-dorsal myositis with somatic dysfunction, lumbar subluxation, degeneration of the lumbar or lumbosacral disc, and sciatica noted in treatment records, is etiologically related to an incident of service? In so opining, the examiner is asked to do the following: (1) presume that during service in approximately 1963, a box of bolts fell off of a shelf, hit the Veteran on his back, and pinned him to a railing after which he was provided ice packs for his swollen low back; (2) consider the Veteran's contention that he has suffered with back pain continuously since the claimed back injury; (3) address the likelihood that the injury such as described by the Veteran could have caused the Veteran's current back conditions (i.e., indicate whether the degenerative joint and disc disease associated with the Veteran's lumbar spine is consistent with the mechanism of injury claimed by the Veteran); and (4) address whether the Veteran's history of medical treatment is consistent with a low back disability that had its onset in service and continued ever since service (i.e., indicate whether the claimed low back disability would have created symptoms of an intensity that would have required a visit to a health care provider for treatment at an earlier point in time). A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. After completing the above, 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. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ TANYA SMITH 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).