Citation Nr: 1804880 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-15 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a low back disability, to include bulging disc. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to March 1972 and from November 1978 to January 1995. The Veteran also had service in the United States Marine Corps and the Navy Reserves. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the delay, further development is necessary prior to the adjudication of the issue on appeal. The Veteran seeks service connection for a low back injury. Specifically, the Veteran contends that he has a low back disability as a result of an in-service incident in which he was ejected from his seat during training. In this regard, the evidence of record includes a June 2013 VA examination report in which the examiner opined that the Veteran's back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that from the records received and reviewed, it could not be determined without resorting to speculation whether the lower back pain the patient experienced while in the service was due to a bulging disc at L4; there was no paresthesias or radiation of the back pain in the service that may indicate disc pathology. The Board finds the June 2013 VA examination inadequate. While the Veteran specifically claimed L4 bulging disc, the evidence of record reveals additional current diagnoses including lumbar strain, spondylosis L1 to S1 with mild disc degeneration, and facet joint arthritis, L4-5 and L5-S1. An opinion is needed as to whether these diagnosed conditions and any other diagnosed back conditions of record are related to the Veteran's claimed in-service injury. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (what constitutes a claim cannot be limited by a lay veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim.) Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran, if necessary, for a VA examination to determine the nature and etiology of his back disability. The claims file (including any additional medical evidence obtained as a result of this Remand) should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified back disability, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, if necessary, the examiner should respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the diagnosed back condition had its onset during active service or within one year of the Veteran's separation from active service in January 1995, or is otherwise related to service? The examiner is asked to specifically discuss the low back pain, paramuscle strain, lumbosacral strain, back swelling, and tenderness documented in the Veteran's service treatment records (See October 16, 1981, May 3, 1982, December 28, 1982, July 25, 1991, August 20, 1991, and September 6, 1991 STRs). The examiner is also asked to discuss the back disability diagnoses of record including lumbar strain, lumbar spine degenerative arthritis, anterolisthesis, spondylosis L1 to S1 with mild disc degeneration, and facet joint arthritis, L4-5 and L5-S1. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Readjudicate the claim on appeal. If the benefits requested on appeal are not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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 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 (2012). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).