Citation Nr: 20007577 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 16-63 325 DATE: January 29, 2020 REMANDED Entitlement to service connection for a low back condition is remanded. REASONS FOR REMAND The Appellant enlisted in an Army National Guard unit and served on an initial active duty for training (ACDUTRA) from January 2013 to June 2013, with subsequent periods of inactive duty training (INACDUTRA). This case comes before the Board on appeal of a May 2015 rating decision. The Board notes that the Appellant was scheduled to testify at a hearing before the Board in June 2019. The Appellant did not appear for the hearing and did not request to reschedule. Accordingly, the Board deems the hearing request to be withdrawn. Entitlement to service connection for a low back condition is remanded. The Appellant contends that a low back disability is causally related to an injury she sustained during a period of INACDUTRA service in January 2014. For service connection to be warranted for this disability, the evidence must demonstrate that the disability was the result of an injury incurred or aggravated while performing INACDUTRA. Here, a duty status report prepared in July 2015 states that the Appellant complained of back pain after performing physical training during INACDUTRA on January 11, 2014. According to the report, the Appellant was then sent to the emergency room at a local hospital. Corresponding hospital records show complaints of lumbar pain that had started that day after doing sit ups. The impression at that time was degenerative disc disease at the L5-S1 vertebrae. Per 38 C.F.R. § 3.1(m), “a service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs.” In this case, the duty status determination was not inconsistent with the requirements of laws administered by VA, therefore the determination is binding on VA. Thus, an in-service injury to the back while serving on a period of INACDUTRA is shown by the record. The key question at issue is whether the Appellant’s current spine disabilities are due to, or were aggravated by this in-service injury. In August 2014, the Appellant underwent a VA spine examination. At that time, the examiner diagnosed a congenital short left leg syndrome, mild congenital postural lumbar levoscoliosis, degenerative disc disease of the lumbar spine, and a herniated disc, L5-S1. The Appellant stated at the examination that approximately one week prior to her January 11, 2014 INACDUTRA service, she had been doing sit ups at home in preparation for upcoming training. She then felt a popping sensation in her low back and experienced a sharp, constant pain in her lumbosacral region that radiated into both legs. She claimed that she was unable to move from the couch or bed, but eventually reported for duty and was immediately sent to the medical unit for evaluation since she could not participate in drills. She stated that she was then evaluated at the local emergency room, where she was diagnosed with degenerative disc disease, and a later MRI in April 2014 indicated a disc herniation at L5-S1. Based on the nature of the disabilities identified, and the history provided by the Appellant at the examination, the examiner opined against a finding that any current back disability was incurred or aggravated by an in-service back injury, and instead found that the Appellant’s back problems were secondary to the Appellant’s preexisting short leg syndrome. Moreover, the examiner did not appear to consider any potential injury (or re-injury) to the back on January 11, 2014, during the Appellant’s training day, noting specifically that there is no relation, link or nexus to an injury alleged incurred in service, “since the injury did not occur during active military service.” As noted above, a duty status report provided by the Department of Defense confirms injury to the back during her period of INACDUTRA. Thus, while it may be that some or all of the Appellant’s current back disabilities pre-existed her period of INACDUTRA on January 11, 2014, the opinion evidence of record does not sufficiently address whether any current back disability was aggravated by injury sustained while attempting to perform training duties while on INACDUTRA. On remand, a new examination and opinion is necessary to address whether the Appellant’s current low back disabilities were caused or aggravated beyond their natural progression by the January 2014 injury. The matters are REMANDED for the following action: 1. Schedule the Appellant for a VA back examination. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Appellant’s documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all current disabilities of the back. Then, with respect to each such disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to a back injury sustained while performing training exercises on January 11, 2014 during her period of INACDUTRA. In providing a response, the examiner should assume as true that the Appellant injured her back during service on January 11, 2014—as was reported in the July 2015 duty status determination—and specifically address whether it is at least as likely as not (50 percent or greater probability) that such injury caused any of the Veteran’s current disabilities, or aggravated any pre-existing disability beyond its natural progression. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include the evidence identified in support of any conclusion, as well as the reason why such evidence supports the conclusion. 2. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.