Citation Nr: 18160334
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 17-25 438
DATE:	December 26, 2018
REMANDED
Entitlement to service connection for residuals of low-back injury is remanded. 
REASONS FOR REMAND
The Veteran had active service in the United States Navy from November 1951 to September 1954.  
At the outset, the Board notes in the record that both the January 2017 rating decision and the April 2017 Statement of the Case (SOC) state the claim “is considered reopened.”  However, these statements are erroneous.  The record does not show that there has been a final decision of this claim closing the appeal.  In this respect, the Board notes there are August 2016 and January 2017 rating decisions associated with the claims.  However, the Veteran filed a Notice of Disagreement in February 2017, which is within the appellate period for both rating decisions.  Moreover, the record reflects the Veteran submitted new and material evidence within the one year following the first rating decision in August 2016, thereby further precluding finality of either the August 2016 or January 2017 rating decisions.  38 C.F.R. § 3.156(b).  
As the record shows that the appellate period for this claim never expired, it is not necessary for the Board to address the issue of reopening.
1. Entitlement to service connection for residuals of low-back injury.
The record contains a March 2016 medical statement of the Veteran’s private treatment provider, Dr. S.K.J., opining that the Veteran’s “back condition is due to an early disk injury and may be the one he described happening to him back in 1953,” as well as his September 2016 opinion that “the injury that is causing his current back issue is at least as likely as not the one he sustained in 1953 while he was serving on active duty in the U.S. Navy.”  Additionally, Dr. D.R.B., after completing a November 2016 Disability Benefits Questionnaire (DBQ), produced a December 2016 opinion stating the Veteran’s “present day back issues are the result of an early back injury.  This back injury at least as likely as not occurred in 1953 while he was in the U.S. Navy serving at NAS.”
The above appear to be “positive” opinions; however, no rationales are provided.  Nonetheless, the record does not contain a negative opinion.  Moreover, the November 2016 examination request by the Regional Office (RO) shows that a VA examination for the Veteran’s low-back disorder was in fact scheduled, but cancelled on November 30, 2016.  It is not clear from the request why it was cancelled.  
For these reasons, a VA examination and opinion are necessary to address the issue of service connection, supported by reasons based on the record and clinical findings.
The matter is REMANDED for the following action:
1. Contact the Veteran and/or his representative for information pertaining to any current treatment for residuals of low-back injury at any VA facility and by any private treatment provider.    
Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file.  The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated.  All attempts to obtain records should be documented in the claims file.
2. Then, schedule the Veteran for an examination conducted by the appropriate medical professional.  The complete electronic claims file must be made available to the examiner in conjunction with the examinations.  The examiner should detail all findings.  
The examination should provide findings and diagnoses as to the nature, extent and current severity of residuals of low-back injury.  
The examiner is requested to render an opinion, addressing the following:
Whether it is more likely than not (more than a 50 percent probability) or less likely than not (less than a 50 percent probability) that residuals of low-back injury were directly caused by an event, injury or illness during the Veteran’s active service or is etiologically related to it. 
The opinion must be explained by an adequate rationale, by which the examiner’s conclusions are supported by direct references to clinical findings made on examination, to the Veteran’s treatment records and/or to medical literature.  
The examiner must comment on the findings and opinions of other examiners in the record, in particular, the 2016 opinions of Dr. S.K.J. and Dr. D.R.B.  In addition, the examiner should acknowledge, address, consider, and discuss all lay evidence in the record pertaining to residuals of low-back injury, including the Veteran’s lay statements, any lay statements of his wife, other family members, friends, co-workers, or others, as well as the Veteran’s reports to providers, as they appear throughout the record.  Findings should be reconciled with other records on file to the extent possible.  
3. After completing the above development and any other indicated development, readjudicate the claim.  If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond before returning the case to the Board.  

 
T. BERRY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	P. Franke, Associate Counsel

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