Citation Nr: 20041295 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 19-17 894 DATE: June 17, 2020 REMANDED Entitlement to service connection for a lumbar spine disability (claimed as back problems with severe back pain) is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from August 1953 to June 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). Entitlement to service connection for a lumbar spine disability (claimed as back problems with severe back pain) is remanded. The Veteran contends that his current back condition is related to his active military service. Specifically, the Veteran asserts that his back condition began during service and has persisted since then, and that it is the result of lifting and carrying heavy objects, to include tank parts, during service. See e.g., May 2019 VA Form 9; May 2019 statement in support of claim (VA Form 21-4138); May 2016 notice of disagreement. Unfortunately, the Veteran’s service treatment records (STRs) are unavailable. Specifically, in December 2015, the National Personnel Records Center (NPRC) determined that the Veteran’s service records were unavailable due to a fire-related incident in 1973. The Board notes that when records in the possession of the government are unavailable through no fault of the Veteran, VA has a heightened obligation to assist the Veteran in the development of the case, and to explain findings and conclusions, as well as carefully consider the benefit of the doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In this case, the Board finds that there have been deficiencies in the development of the Veteran’s case. First, there is no indication in the record that the agency of original jurisdiction (AOJ) attempted to contact any other potential repositories for the requested information, such as the VA Records Management Center (RMC) or U.S. Joint Services Records Research Center (JSRRC). Further, the AOJ only made one request for the Veteran’s service records from NPRC and did not include in that request morning reports or sick call logs. Accordingly, on remand, the AOJ must make as many requests as necessary to obtain the Veteran's STRs until the AOJ determines that either the records do not exist or that further efforts to obtain those records would be futile. See 38 C.F.R. § 3.159. The same applies for the Veteran’s service personnel records (SPRs), as none have been associated with the claims file. On remand, the AOJ should attempt to obtain any outstanding SPRs as well. Lastly, no medical opinion regarding etiology of the Veteran’s lumbar spine disability has been obtained in this case. As there is medical evidence of a diagnosis of degenerative disc disease of the lumbar spine, as well as the Veteran’s credible lay statements regarding his in-service activities such as lifting and carrying heavy tank equipment, the Board finds that the Veteran should be afforded a VA examination on remand for his lumbar spine disability. The matter is REMANDED for the following action: 1. Contact any appropriate sources to obtain any STRs and/or SPRs, to include morning reports, related to the Veteran's active duty service from August 1953 to June 1955. In making any request, clearly identify the source(s) contacted. All records and/or responses received, including formal findings of unavailability, should be associated with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the current nature and etiology of the Veteran's claimed lumbar spine disability. The claims file should be made available to and reviewed by the examiner. Initially, the VA examiner should note what, if any, lumbar spine diagnoses the Veteran has, to include degenerative disc disease. If any are present, the examiner should opine as to whether such disorder(s) are at least as likely as not (50 percent or greater probability) related to the Veteran's military service (specifically, the Veteran’s claimed pain and injury from heavy lifting). Although service treatment records are unavailable, note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder(s) and service. The Veteran served in the Army and his DD 214 confirms course work at The Armored School for both wheel and track vehicle maintenance. The VA examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 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 it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maietta, 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.