Citation Nr: 18158857 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 18-16 870 DATE: December 18, 2018 REMANDED Entitlement to service connection for degenerative joint disease of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1971 to March 1973 and from January 1991 to August 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a Notice of Disagreement with the issues of entitlement to a lumbar spine disability and erectile dysfunction. However, on his March 2018 VA Form 9, he limited his appeal to the issue of a lumbar spine disability. Therefore, the Board finds that is the sole issue currently on appeal. Entitlement to service connection for degenerative joint disease of the lumbar spine is remanded. The Veteran contends that he is entitled to service connection for a lumbar spine disability due to an injury to his back in 1971-1972. See August 2017 NOD. The Veteran contends that he injured his back while on patrol in the jungle of Da Nang, Vietnam when he fell while carrying a M-203 grenade launcher in his right arm. Id. He further contends that the fall caused permanent injury to his back. He subsequently submitted a photograph which he says depicts him with a bandage on his right armpit and relates to the time of the back injury. The record indicates that the Veteran’s service treatment records from his period of service (1971 to 1973) are unavailable as they were housed in that section of the National Personnel Records Center’s St. Louis storage facility which burned in a 1973 fire. Under such circumstances, there is a heightened obligation to assist the Veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the veteran. See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d); see also Collette v. Brown, 82 F.3d 389, 392 (1996). Under 38 U.S.C. § 1154 (a), the Secretary must consider the places, types, and circumstances of the Veteran’s service, unit’s history, service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C. § 1154 (b). The Board notes that the Veteran’s DD Form 214 indicates he is a Vietnam War Veteran who was awarded a Combat Infantry Badge and Air Medal. Here, the Board concedes the Veteran’s participation in combat in Vietnam. Section 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996); see also Kessel v. West, 13 Vet. App. 9, 17-19 (1999). Therefore, although the Veteran’s service treatment records from his service in Vietnam are missing, the Board will concede his description of his lumbar spine injury. Based on the Board’s concession of the in-service injury, it finds that a remand is necessary to obtain a medical opinion which considers the Veteran’s credible reports of injury to his back in Vietnam. He was previously afforded a VA examination in October 2018; however, the examiner did not consider the Veteran’s conceded lay reports of a back injury. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the October 2018 examiner (or an appropriate medical professional). The Veteran’s electronic claims folder, including a copy of this remand, must be available to the examiner for review. If the examiner feels another examination is necessary, another examination should be scheduled. The examiner is requested to offer an opinion as to the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s degenerative joint disease of the lumbar spine, was incurred in or is otherwise related to service, including due to a back injury while stationed in Vietnam during 1971-1972. The Board has conceded the Veteran’s participation in combat in Vietnam and therefore, the examiner should consider the Veteran’s lay statements of a back injury in Vietnam as credible. A complete rationale for all opinions is requested. 2. After completing the development and conducting any additional development that is deemed warranted, readjudicate the claim on appeal. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board. MICHAEL A PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville