Citation Nr: 18129751 Decision Date: 08/29/18 Archive Date: 08/28/18 DOCKET NO. 15-32 307 DATE: August 29, 2018 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran had active service from August 1962 to August 1972, including service in Vietnam. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in May 2013 that in pertinent part, denied service connection for a low back disability. 1. Entitlement to service connection for a low back disability is remanded. The Veteran seeks service connection for a low back disability, which he asserts began during his active duty service as a combat helicopter pilot in Vietnam. He contends that his low back was injured when his helicopter was shot down during an evacuation in May 1968. See his October 2011 claim and September 2015 substantive appeal. In his substantive appeal, the Veteran asserted that a VA physician, Dr. D.D. told him it was likely that his current low back disability was related to the in-service helicopter incident, in the absence of any other back injuries. The Veteran has been diagnosed with lumbar disc degeneration. See report of September 2012 VA examination. VA medical records reflect treatment for low back pain and lumbar facet arthropathy. In September 2012, the Veteran was afforded a VA examination. The examiner opined that it was less likely that the Veteran had a low back disability that was incurred in or caused by events in service, because the service treatment records did not document such a condition. The Board finds that that this medical opinion is inadequate because although a lack of in-service documentation may be a factor, 38 C.F.R. § 3.303 (d) permits service connection for disabilities diagnosed after discharge. Remand is required for a supplemental VA medical opinion with consideration of all the evidence of record, including medical records, the Veteran's lay statements and service personnel records. Pertinent records are summarized below. A September 2012 VA primary care note and several subsequent notes reflect that the Veteran reported that during service, he was a helicopter pilot and was shot down 7 times. A September 2016 VA treatment note reflects that the Veteran had chronic back pain due to a helicopter crash in service. There is no indication what records were reviewed by this examiner in providing this notation. The Veteran’s service treatment records are silent for any treatment or diagnoses related to his back. Service personnel records reflect that the Veteran served as helicopter pilot in combat in Vietnam, and was awarded a Bronze Star Medal with “V” device for heroism in ground combat for an incident in May 1968, in which he was the pilot of a helicopter in the Republic of Vietnam. The General Orders for this award show that after he maneuvered the helicopter into a small landing zone, heavy enemy fire erupted on his ship just as the wounded troops were being loaded aboard. A recoilless rifle round exploded against the ship and ripped the tail boom off. Although stunned by the blast, he assisted in removing a wounded soldier from the wreckage, and helped other casualties to a relatively secure area, set up a defensive perimeter, crawled 30 meters back to the ship and retrieved the radio, crawled back to the other soldiers, and then led them to another clearing where another helicopter extracted them. If a Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of in-service incurrence satisfactory lay or other evidence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). The Board notes that the Veteran has stated that he believes that he sustained a back injury in the incident outlined above in such a way as to contribute directly to severe and disabling pain in later years and that the pain became apparent in about 1980 and had been increasing and debilitating for 45 years. The Veteran also stated that the injury in service was not so severe initially to seek medical attention and in any event, seeking medical attention in service was frowned upon. See statements of Veteran in notice of disagreement and formal appeal. Notably, on several medical examinations in service, his spine was normal, including on separation examination in August 1972, and he denied back trouble during service in June 1969, November 1970, and June 1971. After service, the Veteran consistently denied receiving any combat injuries in Vietnam on VA examination in January 1973 and during a November 1985 VA hospitalization. Ongoing medical records should also be obtained. 38 U.S.C. § 5103A (c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The matter is REMANDED for the following action: 1. Obtain updated VA medical records of treatment or evaluation of a low back disability. 2. After any additional medical records are associated with the file, obtain a supplemental VA medical opinion as to whether any current low back disability is related to service. The examiner should review the entire record, including this remand, the service and post-service medical records, the Veteran’s lay statements, and service personnel records (including the General Orders for the Bronze Star Medal (BSM with “V”) prior to providing an opinion. An examination need only be performed if deemed necessary by the examiner. The examiner must opine whether any current low back disability is at least as likely as not related to an in-service injury, event, or disease, including the documented May 1968 helicopter incident for which the Veteran received a Bronze Star Medal (BSM with “V”). The examiner should opine as to whether the current low back disability at least as likely as not (1) began during active service, (2) manifested within the first year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. If the examiner provides a negative opinion, the fact that there is not an in-service documentation of a low back injury should not be the sole rationale. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. (Continued on the next page)   If the examiner cannot provide the above requested opinions without resort to speculation, it is essential that the examiner explain why an opinion cannot be provided (i.e. lack of records, limits of medical knowledge, etc.). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. L. Wasser, Counsel