Citation Nr: 0734236 Decision Date: 10/31/07 Archive Date: 11/07/07 DOCKET NO. 06-10 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a low back disorder with right leg pain and numbness. 2. Entitlement to a total rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, C. E. F., and C. F. ATTORNEY FOR THE BOARD L. Crohe, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from January 1995 to March 1995. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Denver Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2007, the veteran testified at a video conference hearing before the undersigned; a transcript of that hearing is of record. 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. REMAND Essentially, the veteran contends that he sustained a low back injury with right leg pain and numbness when he fell on ice in February 1995, while he was in service, and that the injuries caused a chronic low back disorder that begin in service and has persisted since. The allegations appear to be (at least in part) consistent with medical records in the claims file that showed that the veteran was treated in service for low back pain in February 1995. Also June 1997 surgical records from Lutheran Medical Center reported a history of the veteran falling on ice while in the military. The Board finds this history probative as it was given for treatment purposes almost eight years prior to the veteran filing a claim for compensation, and it was given in close proximity to the veteran's discharge from service (approximately two years). The veteran also contends that he did not have a pre-existing low back disorder. While the veteran's service medical records referred to a trampoline accident that occurred a year and a half prior to service, and he was ultimately administratively separated by reason of defective enlistment and induction due to erroneous enlistment as evidenced by "weak/painful back which require[d] extended support," his November 1994 entrance examination was negative for any low back disorders. Also, in a February 2005 statement, Dr. E. K. G., the veteran's private treating physician, stated that she gave the veteran a complete physical, prior to his entry in service, and found him in completely good health. Furthermore, "buddy statements" dated in January 2005 from C. E. F. and C. R. H., as well as testimony from the August 2007 video conference hearing from C. E. F. and C. F. indicated that they did not notice the veteran having back problems until he was discharged from the military in March 1995. At his August 2007 video conference hearing, the veteran also indicated that the trampoline accident prior to service involved his upper back and neck, and his injury in service, post service laminectomy, and current back disorder involved his low back. The Board notes that whether the veteran's low back disorder was caused or aggravated by an event or injury in service is a medical question, in which a medical opinion is necessary. The veteran seeks TDIU. Given that determinations on the veteran's petition to seeking service connection for low back disorder may have a significant impact upon the outcome of the claim on appeal for a TDIU, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Hence, it follows that, any Board action on the TDIU claim would, at this juncture, be premature. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ask the veteran to identify all VA and non-VA health care providers that have treated him for a low back disorder, prior to, during, and since his discharge from service, then obtain complete records (not already of record) of such treatment from all sources identified. 2. The veteran should be scheduled for an orthopedic examination to determine the nature and etiology of any current low back disorder with right leg pain and numbness. The veteran's claims folder, specifically including the service medical records and all preservice and postservice back related treatment records received must be reviewed by the examiner in conjunction with the examination and any indicated tests or studies must be completed. The examiner should: (a) specify any current low back disorder with right leg pain and numbness and opine whether it is at least as likely as not that such disorder(s) is/are related to the veteran's service. (b) comment on whether it is as least as likely as not that that any current low back disorder existed prior to the veteran's entry into service. If so, did the preexisting condition increase in severity during active duty service? If so, was the increase in severity due to natural progress of the condition? (c) and, explain the rationale for all opinions given. 3. After the development ordered above is completed, the RO/AMC should re-adjudicate the claim. If it remains denied, an appropriate supplemental SOC should be issued, and the appellant should have the opportunity to respond. The case should then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2006). _________________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).