Citation Nr: 19159262 Decision Date: 07/31/19 Archive Date: 07/31/19 DOCKET NO. 18-47 278 DATE: July 31, 2019 REMANDED Entitlement to service connection for lower back condition/disc herniations is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1988 until September 1990, and again in January 1991 until March of 1991. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a June 2018 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO). Entitlement to service connection for lower back condition/disc herniations is remanded. The Veteran contends that he suffers from a low back disability because while performing service as a mechanized infantryman driving Bradley fighting vehicles, his body took a lot of damage from continuous up and down motion and slamming of his pelvis and lower back against the driver and dismount seat. The Veteran’s DD214 indicates that he was a fighting vehicle infantryman. The Veteran’s VA medical records from May 2016 indicates a diagnosis of degeneration of the lumbar spine. A review of the Veterans service treatment record does not indicate that he was treated for any back issues in service. While treatment records are to be taken in consideration and reviewed by examiners, the absence of documented treatment in service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87,89 (1992); see also Henley v. Brown, 5 Vet. App. 155, 157 (1993). A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran’s VA treatment records include a diagnosis of degeneration of the lumbar spine. Additionally, the Veteran contends his MOS did damage to his back. Nevertheless, despite the diagnosis of record, it is unclear whether the Veteran’s condition is causally or etiologically related to service. As such, the Board finds that the low threshold of McLendon is met and VA is obliged to provide a VA examination. McLendon, 20 Vet. App. at 83 Therefore, the Board remands this matter for a new VA examination with an opinion regarding the etiology of the Veteran’s currently diagnosed degeneration of the lumbar spine. The matter is REMANDED for the following action: 1. Specifically ensure that all outstanding and continuing VA and/or private treatment records specifically related to treatment of the back are available. Should such exist, associate the records with the electronic claims record. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of his currently diagnosed degeneration of the lumbar spine. The claims file must be reviewed by the examiner and the report should note the review. Based on the examination results and a review of the record, the examiner should provide an opinion addressing the following question: whether it is at least as likely as not that the Veteran’s degeneration of the lumbar spine was incurred in or otherwise related to active duty service to include continuous up and down motion and slamming of his pelvis and lower back against the driver or dismount seat while driving Bradley tanks. 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. 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. Shineski, 23 Vet. App 382 (2010). 3. If any benefit on appeal remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and allow an appropriate time for response. Thereafter, the case should be returned to the Board, if otherwise in order. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Timothy Hatfield, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.