Citation Nr: 1313148 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 07-28 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran had active duty service from June 1975 to June 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in April 2011, when the Board determined that new and material evidence had been received to reopen the claim for service connection for a low back disability, and remanded the reopened claim for additional development. Also in April 2011, the Board granted service connection for hypertension and for type II diabetes mellitus. Because a final Board decision was rendered with regard to these two issues, they are no longer a part of the current appeal. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. Additional documents pertinent to this appeal in Virtual VA have been printed and associated with the physical claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran has claimed, amongst other contentions which have already been adequately developed, that his current low back disability is secondary to his service-connected allergic rhinitis, to include the medication he took for such disability. A July 2001 VA treatment record noted the Veteran's report that he stopped taking Allegra for his allergies due to increased back pain. A February 2003 VA treatment record noted the Veteran's report of low back pain on and off, "usually aggravated with Allegra," so such medication was discontinued. An August 2005 private examination report noted that in 2000, the Veteran began taking fexofenadine for allergies and began experiencing low back pain. It was further noted that in 2002, the Veteran stopped taking this drug and still experienced disabling back pain, and that after numerous tests it was determined that his low back pain was caused by a L4-L5 disc herniation. In a September 2005 personal statement, the Veteran noted that his VA provider was informed of his use of Allegra in 2002 for allergies which "aggravated" his low back pain ("one of the side effects of such medication"). The Veteran alleged that his physician stated that he was one of the rare cases affected by this drug. The Veteran went on to note that, after being removed from this medicine, his low back pain continued. In an August 2007 addendum to a July 2007 VA spine examination report, the VA examiner (a physician assistant) stated that there was no medically accepted link between allergic rhinitis or any medication taken for allergic rhinitis and degenerative disc disease of the lumbar spine. Therefore, the examiner opined that the Veteran's lumbar spine degenerative disc disease was not caused by his service-connected allergic rhinitis or any medication he took for it. In a February 2011 appellant's brief, the Veteran's representative argued that when a back disorder has already weakened the back structure, sneezing (caused by allergic rhinitis) "can be a cause of aggravation" for such back problems. Recent judicial decisions have stressed that the question of secondary service connection by aggravation must also be developed and addressed under 38 C.F.R. § 3.310. Unfortunately, there is no medical opinion currently of record which addresses whether the Veteran's low back disability is aggravated by his service-connected allergic rhinitis, to include the medication he took for such disability. On remand, the RO/AMC should seek an addendum opinion from the VA spine examiner who rendered the August 2007 opinion regarding allergic rhinitis, if that examiner is available. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should seek an addendum opinion from the VA spine examiner who rendered the August 2007 opinion regarding allergic rhinitis, if that examiner is available. It is imperative that the claims file be made available to the examiner for review. Based on review of the record, the examiner should then respond to the following: (a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's lumbar spine disability is proximately due to his service-connected allergic rhinitis (to include the medication he took for such disability)? (b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's lumbar spine disability has been aggravated by his service-connected allergic rhinitis (to include the medication he took for such disability)? The examiner should offer a rationale for all opinions given with reference to pertinent evidence. If the previous examiner is no longer available, a new examination should be conducted, and the requested opinions rendered, by another qualified examiner. 2. After completion of the above, the RO/AMC should review the expanded record and readjudicate the appeal, to include secondary service connection. If the issue on appeal remains denied, the RO/AMC should furnish the Veteran with an appropriate supplemental statement of the case and the case should be returned to the Board after the Veteran is afforded an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). _________________________________________________ ALAN S. PEEVY 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) (2012).