Citation Nr: 0731990 Decision Date: 10/11/07 Archive Date: 10/23/07 DOCKET NO. 04-41 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Navy from June 1976 to August 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina which, in part, denied service connection for a low back condition. The RO in Louisville, Kentucky currently has original jurisdiction over the veteran's claim. The veteran was scheduled to appear for a hearing with a Veterans Law Judge (VLJ) in August 2007. However, he failed to report for the hearing, he has provided no explanation for his failure to report, and he has not since requested that the hearing be rescheduled. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2006). The appeal is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required on his part. Issues not on appeal In the above mentioned May 2003 rating decision, the RO denied the veteran's claims of entitlement to service connection for a head injury and temporary right sided paralysis and also determined that new and material evidence had not been submitted to reopen a previously denied claim of entitlement to service connection for blackouts. The veteran timely perfected an appeal as to these issues. In a January 2007 Louisville RO rating decision, the veteran was granted service connection for migraine headaches with blackouts (which also encompassed the claimed temporary right-sided paralysis); a 50 percent disability was established effective April 2002. To the Board's knowledge, the veteran has not disagreed with the assigned rating or effective date. This matter has accordingly been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of 'downstream' issues such as the compensation level assigned for the disability or the effective date of service connection]. REMAND The veteran is seeking entitlement to service connection for a low back disability. After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that this issue must be remanded for further evidentiary development. In order to establish service connection for a lower back disability there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case, the evidence of record contains a current diagnosis of degenerative disk disease of the lumbar spine. See a March 2005 VA examination report. Further, the veteran's service medical records indicate that he complained of lower back pain in June 1978. Under these circumstances, a medical nexus opinion must be obtained. See Charles v. Principi, 16 Vet. App. 370 (2002) [where there is evidence of record satisfying the first two requirements for service connection (current disability and in-service disease or injury), but no competent medical evidence addressing the third requirement (a nexus between the current disability and active service), VA must obtain a medical nexus opinion]; see also 38 C.F.R. § 3.159(c)(4) (2006) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Accordingly, the case is REMANDED to the Veterans Benefits Administration (VBA) for the following action: 1. VBA should arrange for a physician to review the veteran's VA claims folder and provide an opinion, with supporting rationale, as to whether the veteran's current low back disability is related to his military service. If the reviewing physician finds that physical examination of the veteran and/or diagnostic testing is necessary, such should be accomplished. A report should be prepared and associated with the veteran's VA claims folder. 2. VBA should then readjudicate the veteran's claim of entitlement to service connection for a lower back disability. If the benefits sought on appeal remain denied, VBA should provide the veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 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). _________________________________________________ Barry F. Bohan 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).