Citation Nr: 21069624 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-17 572 DATE: November 19, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1999 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In relevant part, in the February 2015 rating decision, the RO also adjudicated the issues of increased ratings for erectile dysfunction and for chronic adjustment disorder. The Veteran filed notice of disagreement (NOD) in March 2015, noting that he wished to appeal the claims of service connection for a back disability and increased ratings for his erectile dysfunction and chronic adjustment disorder. A statement of the case issued in February 2017. However, on substantive appeal the Veteran specifically limited the appeal to the issue of service connection for a back disability. See April 2017 VA Form 9. The record then shows that the Veteran filed a separate claim for an increased rating for the chronic adjustment disorder in September 2017. In a September 2017 letter, the RO informed the Veteran that the jurisdiction for his mental health disability rested with the appeals and would be resolved by upcoming appellate action. However, as previously noted, the Board's jurisdiction is limited to the issue of service connection for a back disability. The issue of entitlement to an increased rating for a chronic adjustment disorder is not on appeal. This matter is referred to the Agency of Original Jurisdiction for any action deemed appropriate. On substantive appeal, the Veteran opted to have a Board hearing by videoconference. See April 2017 VA Form 9. In response, VA scheduled a hearing and mailed notice to the Veteran in March 2021. The hearing was scheduled to be held in June 2021. However, the hearing did not take place and there is no indication in the record as to how or why the hearing was cancelled, if the Veteran was notified of the cancellation, or if the Veteran did not appear for the hearing. The Board sought clarification. By letter issued in September 2021, the Board asked the Veteran to clarify his hearing request and expressly advised the Veteran that he had 30 days to respond. The Veteran was also advised that if he did not respond, the Board would assume that he did not want a hearing and would proceed accordingly. The Veteran's representative received a copy. Neither the Veteran nor his representative responded. Thus, no additional action in this regard is needed. Entitlement to service connection for a back disability While the Board regrets the delay, a remand is needed to ensure that the Veteran is afforded every possible consideration and that there is a complete record upon which to decide his appeal. A diagnosis of lumbago is of record. See January 2013 VA Treatment Record. The Veteran contends that his back disability is related to his active duty service. Specifically, the Veteran contends that as an infantryman during various deployments, he routinely carried up to 100 pounds, including his rucksack, ammunition, weapon, water, food, body armor, and gear, which resulted in a back injury. See March 2015 NOD. Additionally, the Veteran's post-service VA treatment records show he reported a service-related injury during which he fell onto his back, and he also reported being rear-ended while driving in a convoy during one of his deployments. See January 2013 VA Treatment Record and September 2017 Statement in Support of Claim for Post-Traumatic Stress Disorder. The evidence shows the Veteran has a current disability, that the Veteran's circumstances of service are consistent with his claimed in-service events, and a possibility that the two might be related. However, the Veteran has not been afforded a VA back examination. Therefore, there is insufficient competent medical evidence to properly adjudicate the claim. Thus, additional development is warranted. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; Colvin v. Derwinski, 1 Vet. App. 171 (1991); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination of the spine to determine the nature and likely etiology of any current back disability. The claims file, to include a copy of this Remand, must be made available to, and reviewed by, the examiner. The examiner should note such review was conducted. The examiner should detail a relevant clinical history of the Veteran and obtain any additional pertinent information needed. After review of the claims file, the examiner should identify all back disabilities that have been present during the appeal period (i.e., from December 2014), and for each disability, opine whether it at least as likely as not (50 percent or greater probability) that the back disability had its onset in, or is otherwise related to, the Veteran's military service. The examiner should consider all evidence, including the Veteran's lay statements, medical records, and other medical opinions. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds that he or she cannot provide an opinion without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.