Citation Nr: 18151383 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 18-33 138 DATE: November 19, 2018 REMANDED Entitlement to service connection for lumbar strain is remanded. REASONS FOR REMAND The Veteran had active service from August 1996 to November 1998. She also served in the Army Reserve and Army National Guard with periods of ACDUTRA and INACDUTRA, which are yet to be confirmed. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, SC, which denied service connection for lumbar strain, finding the evidence of record do not show evidence of complaints, treatment, or diagnosis for a lumbar strain disability or injury while in-service. In April 2017 the Veteran filed a Notice of Disagreement (NOD). A Statement of the Case (SOC) was issued in June 2018, the Veteran filed a timely substantive appeal (via VA Form 9) in June 2018. This case has been advanced on the Board’s docket. See 38 U.S.C. § 7017(a)(2)(C) (2012) and 38 C.F.R. § 20.900(c) (2017). 1. Entitlement to service connection for lumbar strain is remanded. The Veteran alleges that her lumbar strain disability is a result of her military service during deployment to Kuwait, when she was required to stand for 12 hours a day in defense fighting position or carrying a M60 and walking on unleveled ground as well as carrying a 100+ pound ruck sack around every day. She avers that her lumbar strain was sustained during active duty service. The Veteran filed a claim for service connection for a lumbar strain disability in January 2017. Throughout the pertinent time on appeal, the Veteran has been assessed with lumbar strain. The Veteran indicated that she has endured constant back pain since service. A VA examination has not been afforded. In the June 2018 Statement of the Case denying the claim, the RO indicated that the Veteran’s DD Form 214 did not show overseas or foreign service. Although additional records regarding the Veteran’s active service from August 1996 to November 1998 were requested, the RO was unable to confirm combat pay or other information supporting the claimed overseas service. Service records indicate the Veteran was suspended for 40-days in July 1997, but contain no mention of service in Kuwait. Further, the RO found that the records did not show a back injury or treatment in-service. Given that the Veteran has a present disability that may be related to service, the Board finds that upon a finding that the claimed injury was sustained in-service, the Veteran should be afforded a VA examination to determine the nature and etiology of her lumbar spine disability. See McClendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). The Veteran’s claim file contains a VADIR Military History Service record report, which indicates the Veteran served in the Army National Guard and the Army Reserve; however, the report does not indicate which periods were ACDUTRA/INACDUTRA. In June 2018, the Veteran submitted copies of a Certificate of Appreciation and the award of the Armed Forces Expeditionary Medal indicating that she served in Kuwait from July to November 1997. Therefore, an attempt to obtain DFAS records to verify the nature of all periods of the Veteran’s service should be made and all periods of service should be verified to the extent possible. Accordingly, this matter is REMANDED for the following action: 1. The AOJ should obtain a copy from DFAS of the Veteran’s military pay records to attempt to confirm any special pay status (hazardous duty, combat or TDY pay) for duty from August 1996 to February 2008. All efforts to obtain these records, and the responses received, must be documented in the file, and must continue until it is reasonably certain that the records do not exist or that further efforts to obtain the records would be futile, and the Veteran should be notified and given an opportunity to provide them. 2. Certify the nature of the Veteran’s periods of service. As to each period, state whether it was Federalized service, and, if so, whether it was active duty, ACDUTRA, or INACDUTRA. 3. Schedule the Veteran for the appropriate VA examination to evaluate the nature and etiology of the claimed lumbar strain disability. The examiner should be provided a copy of the Veteran’s claim file and is requested to review it in conjunction with this remand. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. Based on the examination results and review of the record, the examiner should provide an opinion as to the following: Whether it is at least as likely as not (50 percent or greater likelihood) that the current lumbar strain disability had its onset in-service or is otherwise related to service. The Veteran has stated that she believes that her lumbar strain disability is a result of her service in Kuwait, when she was required to stand for 12 hours a day in defense fighting position or carrying a M60 and walking around on unleveled graveled ground as well as carrying a 100+ pound ruck sack around every day. The examiner should also consider the asymptomatic mild lordosis 2006 diagnosis shown in the Veteran’s induction physical examination record. In formulating the opinions, the term “at least likely s not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. (Continued on the next page)   Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer any of the requested opinions, a rationale should be provided to the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Steele, Associate Counsel