Citation Nr: 1818366 Decision Date: 03/26/18 Archive Date: 04/04/18 DOCKET NO. 16-52 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1952 to December 1953. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. On February 1952 service entrance examination the Veteran's spine was normal on clinical evaluation. Accordingly, he is entitled to a legal presumption of soundness on entry in service with respect to a low back disability. While a June 1952 service treatment record (STR) states that he had a chronic low back strain that existed prior to service (EPTS), if there was such injury prior to service it would be considered to have resolved barring clear and unmistakable evidence to the contrary (and here lumbar X-rays were normal). While the Veteran's spine was normal on clinical evaluation on service separation examination, he was seen on multiple occasions during service for back pain complaints related injuries sustained in service (including playing football and from a fall on stairs). The Veteran was afforded two examinations (by providers on behalf of VA) in connection with this claim. On January 2015 examination, the provider opined that it was less likely than not that the Veteran's back disability was related to his service. The rationale provided included an observation that the Veteran's claims file did not contain STRs that mention a low back condition. As the STRs do note a low back strain, the provider's opinion is found to be premised on less than complete (and inaccurate) familiarity with the record, and is inadequate for rating purposes. On December 2015 examination the provider opined that the Veteran's degenerative disc disease "clearly and unmistakably existed prior to service, is less likely than not aggravated beyond its natural progression by injuries sustained in service." The provider attributed the Veteran's current back disability to the aging process. The provider did not identify the " clear and unmistakable" evidence of pre-existing back disability, and did not discuss the significance of the documented injuries in service. Further development for an adequate medical advisory opinion in this matter is necessary. Accordingly, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should arrange for the Veteran's record to be forwarded to an orthopedist for review and an advisory medical opinion regarding the etiology of his current low back disability. The consulting provider should note that the Veteran is presumed to have been sound on entry in service with respect to a low back disability, and the rationale for the opinion should acknowledge and account for the Veteran's STRs showing treatment for back complaints and injuries in service. The consulting physician should provide responses to the following: (a) Please identify (by diagnosis) each low back disability entity shown by the record during the pendency of the instant claim. (b) Please identify the likely etiology for each current low back disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that the diagnosed entity is etiologically related to the Veteran's service, to as due to the injuries for which the Veteran received treatment in service? (c) If a diagnosed back disability entity is determined to be unrelated to service, please identify the etiology for the disability considered to be more likely. All opinions must include rationale. 2. The AOJ should then review the record and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. 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). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).