Entitlement to service connection for a low back disorder.
The Veteran had active service from June 1968 to March 1970.
This matter comes before the Board of Veterans' Appeals (BVA or
Board) on appeal from a December 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina, that denied the benefit sought on
appeal. The Veteran appealed that decision, and the case was
referred to the Board for appellate review.
In February 2010 the Veteran testified in Houston, Texas, at a
Travel Board hearing before a Veterans Law Judge. A transcript
of that proceeding is of record and has been associated with the
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
The Veteran has claimed entitlement to service connection for a
low back disorder. Specifically, the Veteran contends that
service connection is warranted for this condition due to
aggravation in service. The Board finds that additional
development is necessary. Accordingly, further appellate
consideration will be deferred and the claim is remanded to the
RO/AMC for further action as described below.
Service connection may be granted if the evidence demonstrates
that a current disability resulted from an injury or disease
incurred or aggravated in active military service. 38 U.S.C.A.
§§ 1110, 1131 (2002); 38 C.F.R. § 3.303(a) (2010). In order to
prevail on the issue of service connection there must be
competent evidence of a current disability; medical evidence, or
in certain circumstances, lay evidence of in- service occurrence
or aggravation of a disease or injury; and competent evidence of
a nexus between an in-service injury or disease and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999);
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan
v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
Every person employed in the active military, naval or air
service shall be taken to have been in sound condition when
examined, accepted and enrolled for service, except as to
defects, infirmities or disorder noted at the time of the
examination, acceptance and enrollment, or where clear and
unmistakable evidence demonstrates that the injury or disease
existed before acceptance and enrollment and was not aggravated
by such service. 38 U.S.C.A. §§ 1111, 1137.
Service connection can be established for a disability which
preexisted service, but was permanently aggravated thereby. A
pre-existing disease or injury will be found to have been
aggravated by service where there is an increase in disability
during such service, unless there is a specific finding that the
increase in disability is due to the natural progress of the
disease. 38 U.S.C.A. §1153; 38 C.F.R. § 3.306(a).
In this case, the Veteran's June 1968 entrance examination
indicates that the Veteran had preexisting back problems, noted
as a herniated disc and recurrent back pain. This was
accompanied by private treatment records from a chiropractor
indicating that he had been treating the Veteran for a back
condition since September 1967. Those records indicate that an
x-ray of the lumbar spine showed cronal actioulations of the left
facets on L3 and L4 lumbar vertebrae and sagital articulation of
the right facet at L3 and L4 vertebrae. Grade one
spondylolisthesis of the third lumbar vertebrae was also
indicated. Subsequent service treatment records from August
1968 indicate that the Veteran was treated on one occasion for
back strain. No additional complaints or treatment in service
In his August 2010 hearing before a Veterans Law Judge the
Veteran stated that he was not afforded a separation examination.
However, service treatment records do indicate that the signed a
separation examination form in March 1970. That report does not
reference any current back problems and indicates that the
Veteran denied all illnesses.
Post-service treatment records first indicate treatment for a
back condition in April 1987, and continue through April 2003.
VA treatment records from 2003 through 2010 also show complaints
of low back pain with a diagnosis of degeneration of the lumbar
During the August 2010 hearing before a Veterans Law Judge the
Veteran stated that he served as a platoon medic while in Vietnam
and that he had to carry supplies which would sometimes weight
over 100 pounds. He also stated that his back ached in service.
The Board notes that to date, the Veteran has not been afforded a
VA examination in connection with this issue, and that the
evidence of record is insufficient for the Board to render a
decision. The Veteran's service treatment records are sufficient
to require VA to obtain a medical opinion. See McLendon v.
Nicholson, 20 Vet. App. 79 (2006). Consequently, this matter
must be remanded for additional development of the medical record
pursuant to 38 C.F.R. § 3.159(c)(4). Specifically, the examiner
should determine whether the Veteran's in-service report of back
strain indicates a worsening of his preexisting back disorder.
This case is being returned to the RO via the Appeals Management
Center (AMC) in Washington, D.C., and the Veteran will be
notified when further action on his part is required.
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC should schedule the Veteran
for an appropriate VA examination in support
of his claim for service connection for a low
back disorder. Any and all indicated
evaluations, studies and tests deemed
necessary by the examiner should be
accomplished. The claims folder should be
made available to and be reviewed by the
examiner prior to the examination. Following
a thorough evaluation the examiner is ask to
determine whether it is at least as likely as
not (50 percent or greater probability) that
the Veteran's in-service treatment for back
strain represents an increase in severity.
If the examiner determines that the Veteran's
back disorder did not increase in severity
during service, the examiner should so
indicate. However, if the examiner finds
that the Veteran's back disorder did increase
in severity during service, then the examiner
should express an opinion as to whether this
increase in severity was due to the natural
progression of the disease.
A complete rationale for each opinion offered
must be included in the report and an
explanation of the principles involved would
be of considerable assistance to the Board.
Specifically, that rationale should explain
the extent to which the opinion is based on
medical principles and the extent to which it
is based on the history provided by the
2. When the requested development has been
completed the case should again be reviewed
by the RO, to include consideration of any
additional evidence submitted. If the
benefits sought are not granted the Veteran
and his representative should be furnished a
Supplemental statement of the case, and be
afforded a reasonable opportunity to respond
before the record is returned to the Board
for further review.
By this remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the Veteran until
she is notified by the RO. The appellant has the right to submit
additional evidence and argument on the matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2010).
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