Citation Nr: 1807555 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-27 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for herniated discs of the back. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel INTRODUCTION The Veteran had active service from August 1971 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an Aril 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In September 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that his back disability is the result of his service. Specifically, the Veteran contends that his back injury was sustained during ejection seat training prior to beginning flight training during the fall of 1971. See May 2013 Correspondence; July 2017 Form 9; see also September 2017 videoconference hearing transcript. At the September 2017 videoconference hearing, the Veteran explained that after he finished his basic training and before flight training, he participated in ejection seat training. He testified that during the ejection seat training he could feel that "something wasn't right." The Veteran stated that something happened during the ejection seat launch that gave him a twinge in his back and he knew something was not right. The Veteran noted that he had back pain during service, but that he did not report his injury because he did not want to fall behind in his class or be taken out of flight training. Instead, he worked through the pain. However, the Veteran asserts that over the years his back pain has increased in severity and that in 1999 his back became so painful that he could barely get out of bed. The Veteran has submitted an April 2012 opinion from private physician, T. F., M.D., which indicates a diagnosis of lumbar disc disease. The private physician opined as to the following: "One cannot say exactly how long this condition existed prior to date of diagnosis but this type of disability could be present for years before becoming symptomatic. It is my opinion that this condition could have as likely as not been caused or aggravated by the Veteran's active duty service time." While the Board considers the entire claims file, to include the April 2012 private examiner's opinion, the standard upon which service connection is established must be one of "at least as likely as not," rather than "could have as likely as not." The Veteran has not been afforded a VA examination. VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. See McLendon, 20 Vet. App. 79 (discussing circumstances under which a VA examination is required, to include: (1) evidence of a current disability; (2) evidence of an event, injury, or disease in service; (3) indication that the current disability may be associated with service; (4) and insufficient medical evidence to make a decision). Here, the Veteran has not been afforded a VA examination. As there is evidence of current back disability, testimony of an in-service occurrence, and a potential link between the two, examination is required. 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. 79. Given the lack of sufficient medical evidence to make a decision on this matter, the Veteran should be afforded a VA examination to address the etiology of his current back disability. See Colvin, 1 Vet. App. 171 (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant and outstanding VA and private treatment records. Should they exist, associate them with the electronic claims file. 2. Thereafter, schedule the Veteran for a VA examination to determine the etiology of the Veteran's back disability. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimony, and treatment records, must be reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should opine as to whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran's back disability had its onset in service or is otherwise related to service, to include a reported injury during ejection seat training in 1971. The examiner's attention is directed to the Veteran's September 2017 videoconference hearing testimony. See September 2017 videoconference hearing transcript; see also May 2013 Correspondence and July 2017 Form 9. The examiner's attention is also directed to the Veteran's September 2017 Internet research regarding flight ejections. The examiner is directed to consider the April 2012 private physician's opinion, and if necessary, reconcile any discrepancies. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. In rendering the requested opinion, the examiner is instructed to specifically acknowledge the Veteran's testimony. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Following completion of the above directives, review the claims file to ensure compliance, including that the examination report is adequate. If it is deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response, and return the claims folder to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).