Citation Nr: 21008213 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 14-32 332 DATE: February 12, 2021 REMANDED Entitlement to service connection for back impairment is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 22, 1975, to October 23, 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife presented sworn testimony at a virtual hearing before the undersigned in December 2020. Historically, in a March 2013 rating decision, the RO denied service connection for a back condition on the basis that such preexisted and was not aggravated during service. The Veteran appealed. Within one year after the decision, new VA treatment records were created. As such, these records were constructively before the March 2013 adjudicator. To date, VA has not provided a determination that is directly responsive as to whether such records contained new and material evidence. Thus, the Veteran’s initial claim has remained pending since the March 2013 rating decision and will be adjudicated de novo. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020) (discussing 38 under 38 C.F.R. § 3.156(b)). Entitlement to service connection for back impairment is remanded. The Veteran seeks service connection for back impairment, which he relates to a fall during basic training. Upon entrance into service, the Veteran reported a history of fractured vertebrae in 1973. See Report of Medical History (September 1975). Upon clinical evaluation, a doctor found that the Veteran’s back was normal, assigned a “1” in each of the PULHES boxes, and deemed the Veteran fit for service. See Report of Medical Examination (September 1975). As such, the Veteran must be presumed sound at to his back at service entry. On September 26, 1975, the Veteran entered Basic Combat Training. On September 30, 1975, he presented with mechanical back pain. In an October 1975 Medical Evaluation Board report, clinicians deemed the Veteran unfit for service due to “istimic narrowing spondylolysis L5,” which existed prior to service. The Veteran has yet to undergo VA examination to ascertain the nature, onset and etiology of the Veteran’s current back impairment, and that Board finds that such is needed to decide the Veteran’s claim. Specifically, medical opinion is needed to address the likelihood that any current back impairment existed prior to and worsened during service, or whether any non-preexisting impairment was incurred in or is otherwise related to service. This matter is REMANDED for the following action: The Veteran should be scheduled for an appropriate VA examination (in-person or telemedicine) to determine the nature, extent, onset and etiology of any back impairment found to be present. The examiner should state the likelihood that any back impairment found to be present existed prior to service. If the examiner concludes that back impairment found to be present existed prior to service, the examiner should indicate that likelihood that the disability worsened during service. If the examiner diagnoses the Veteran as having back impairment disability that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service. In offering each of these opinions, the examiner should specifically acknowledge and comment on the Veteran’s and his wife’s competent and credible testimony regarding the Veteran’s recurrent back pain since service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joshua R. Castillo, 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.