Citation Nr: 18160153 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 17-07 772 DATE: December 27, 2018 REMANDED Entitlement to service connection for status post lumbar spine fusion, to include a temporary 100 percent rating due to hospitalization or convalescence is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from June 1998 to August 2000 with subsequent service in the Army National Guard. Entitlement to service connection for status post lumbar spine fusion, to include a temporary 100 percent rating due to hospitalization or convalescence is remanded. The Veteran seeks service connection for a lumbar spine condition claimed as a low back disability. The Veteran asserts that he injured his back during service and that he has continued to have back problems since. As to this in-service incurrence, the record reflects that the Veteran’s service treatment records (STRs) for his period of service from 1998 to 2000 are missing and by no fault of the Veteran. When there is evidence that a veteran’s service records have been lost or destroyed, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this case, the Regional Office (RO) denied the claim because evidence of record shows the Veteran complained of lower back pain on April 4, 2007, prior to his initial active duty training beginning on April 18, 2007. Thus, the RO sought an opinion as to a pre-existing condition, and a February 2013 VA examiner opined that a back condition pre-existed service and was not aggravated during service. However, as the Veteran asserts that he injured his back during service, given the lack of contradicting evidence and the heightened duty to consider the benefit of the doubt doctrine in this case, the Board determines that an in-service back injury occurred during service prior to the April 4, 2007, complaint. As such, the claim is one for service connection, not aggravation. As the claim is not one for aggravation, further development is necessary prior to adjudicating the claim. While the Veteran was afforded a VA back examination in February 2013, the examiner only provided an opinion as to whether a back condition existed prior to service and was not aggravated during service. As such, remand is necessary for an opinion that addresses whether the Veteran’s current back disability was caused by, incurred in or is otherwise related to his in-service back injury. Importantly, the examiner is advised that the Veteran’s STRs are unavailable, and his reports as to an in-service back injury are credible. These statements must be considered and addressed in providing an opinion as to the etiology of his current back condition. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and etiology of his low back disability. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is also advised that the Veteran is competent to attest to observable symptoms, such as pain. If there is a medical basis to support or doubt the Veteran’s reports of symptomatology, the examiner should provide a fully reasoned explanation. Any opinion provided must be accompanied by a rationale. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current back disability was incurred in or is otherwise related to his active service. Importantly, the examiner is advised that the Veteran’s service treatment records are not available, and his statements of an in-service back injury are to be considered credible. 2. After completing the above actions, readjudicate the claim on appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel