Citation Nr: 1807838 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-15 976A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a lumbar spine condition, to include herniated disc at L5-S1. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from May 1988 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND With regard to the issue of entitlement to service connection for a lumbar spine condition, to include herniated disc at L5-S1, the Board notes that additional development must be done. The Veteran contends that his back condition is related to his active duty service. There is no examination of record addressing whether the Veteran's lumbar spine condition, to include herniated disc at L5-S1, is related to service. A VA examination with an opinion regarding service is required. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain and associate with the claims file, all outstanding VA treatment records, VA hospital records and private treatment records related to his lumbar spine condition, to include herniated disc at L5-S1. 2. Ask the Veteran to identify all sources of treatment that he has received for his lumbar spine condition, to include herniated disc at L5-S1 and to provide any releases necessary for VA to secure records of such treatment or evaluation. Allow a reasonable time for response. The RO/AMC should obtain copies of the complete records of all such treatment and evaluation from all identified sources. 3. Thereafter, schedule the Veteran for a VA examination by a physician with appropriate expertise. The examination should not take place until steps 1, and 2 have been completed. The purpose of the examination is to determine the etiology of the Veteran's lumbar spine condition to include herniated disc at L5-S1. The examiner is also to consider the Veteran's assertions and lay statements regarding his back injury during active duty service. The VA examiner is to determine whether it is at least as likely as not that the Veteran's lumbar spine condition, to include herniated disc at L5-S1is related to his active duty service. The following considerations must govern the examination: a. The claims file and a copy of this remand must be made available to the physician, who must acknowledge receipt and review of these materials in any report generated. b. The physician must review all medical evidence associated with the claims file. In particular, the Board draws the physician's attention to the noted diagnosis of right L5-S1 herniated disc and he Veteran's contentions that his right L5-S1 herniated disc is related to his active duty service. c. All indicated tests and studies must be performed. d. The examiner must take a complete history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. e. The examiner must provide an opinion as to whether the Veteran's lumbar spine condition, to include right L5-S1 herniated disc, began during active service or is related to any incident of service. f. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. g. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. Stated alternatively, if the examiner is unable to express an opinion about the source of the Veteran's lumbar spine condition, to include right L5-S1 herniated disc without speculation, he or she must state detailed reasons for this inability. The law mandates that VA may only use competent medical evidence in these determinations, and not its own non-medically trained experience. 4. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Cynthia M. Bruce 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).