Citation Nr: 18156287 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-43 883 DATE: December 7, 2018 REMANDED Entitlement to service connection for a lower back disability is remanded. REASONS FOR REMAND Entitlement to service connection for a lower back disability is remanded. The Veteran had lengthy periods of active and inactive service as a member of the New Jersey Air National Guard and Pennsylvania Air National Guard from 1976 to 2012. Periods of active duty or active duty for training include from September 1976 to December 1976, from January 1982 to October 1982, and again from October 1982 through February 1983. He also served on active duty during Operation Desert Shield and Desert Storm in August 1990 through December 1990 in Saudi Arabia. The Veteran was awarded the Southwest Asia Service Medal with two bronze stars, the National Defense Service Medal, and the Desert Storm Medal in 1991 for his service. The Veteran was also deployed on active duty from October 2001 through January 2002 and February 2007 through October 2007 in support of Operations Iraqi Freedom and Enduring Freedom. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Notably, the RO had previously denied the Veteran’s claim for service connection for a low back disability in January 2013. In a November 2013 claim, the Veteran submitted additional evidence and argument regarding his claim, styling his submission as a claim to reopen rather than a notice of disagreement. The RO proceeded to adjudicate his claims under a new and material evidence framework. VA regulations provide, however, that new and material evidence submitted within a year of a rating decision tolls the finality of the earlier rating decision. 38 C.F.R. § 3.156(b). As the Veteran submitted such evidence during that time frame, his claim does not require new and material evidence before being considered on a de novo basis. The Veteran contends that he is entitled to service connection for a lower back disability which began during active service. He alleges his lower back injury resulted from his aviation service wherein he performed parachutist duties. The Veteran also noted a jet ski accident while on active duty in Saudi Arabia as a cause for his lower back injury. The Veteran never underwent a VA examination for his lower back injury. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 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. The Veteran has a current disability and his supplemental documentation establishes an in-service event during active duty. The in-service event may have caused his lower back injury and a VA examination will assist in determining if service connection elements are met. Therefore, a remand is required to obtain a VA examination and opinion for service connection for the claimed disability. The Board notes the Veteran is receiving ongoing chiropractic treatment, therefore, with the Veteran’s assistance, it is necessary to obtain updated private treatment records. The matter is REMANDED for the following actions: 1. Obtain private treatment records from Dr. H in Washington, New Jersey and Dr. U in Hackettstown, New Jersey. In addition, contact the Veteran and ask that he identify any related medical records that are not already of record. Obtain any of the Veteran’s VA treatment records not previously obtained, specifically the records from Hunterdon Medical Center in Flemington, New Jersey pertinent to his lower back injury. 2. Schedule the Veteran for an appropriate VA examination to evaluate the Veteran’s claimed lower back disability. Based on a complete review of the claims file, to include the Veteran’s lay statements and supplemental medical records, the examiner should opine whether it is at least as likely as not that the lower back injury was incurred in or is otherwise related to his active service. The examiner should provide reasons for the opinions that consider the Veteran’s reports of his history, his parachutist duties, the reported in-service injury, and his current disability. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Mouzakis, Associate Counsel