Citation Nr: 0811208 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-06 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for low back disability, to include as secondary to service-connected disabilities involving the right knee, the left knee, and the right foot. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Kammel, Counsel INTRODUCTION The veteran served on active duty from September 1981 to September 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, wherein, the RO, in part, denied service connection for low back disability. By that same rating action, the RO determined that new and material evidence had been received to reopen previously denied claims for service connection for right and left knee disabilities; service connection was granted and initial (noncompensable) evaluations were assigned for each knee, effective January 13, 2005. In a May 2005 notice of disagreement, the veteran expressed disagreement with the denial of service connection for the low back disorder and the ratings assigned for his right and left knee disabilities. In August 2005, the veteran testified before a Decision Review Officer (DRO) at the Waco, Texas RO. A copy of the hearing transcript has been associated with the claims files. During the above-referenced hearing, the veteran specifically testified that an award of 10 percent disability ratings for each knee would satisfy his appeal for higher initial evaluations for the service-connected right and left knee disabilities. (Transcript (T.) at page (pg.) 7). By way of a December 2005 rating action, the RO assigned 10 percent disability ratings for each the service-connected right and left knee disabilities from January 13, 2005, the effective date of service connection. As the veteran has indicated that the award of two separate 10 percent ratings (one for each knee) satisfies his appeal for higher evaluations for these disabilities, there remains no controversy and the issues of entitlement to higher initial evaluations for the service-connected right and left knee disabilities are no longer on appeal. See 38 C.F.R. § 20.204 (2007). The veteran is satisfied with the currently assigned initial 10 percent disability ratings assigned for his service-connected right and left knee disabilities, and the only issue that remains on appeal is the one listed on the title page. In June 2006, the veteran canceled his request for a hearing before a Veterans Law Judge at a local RO (i.e., Travel Board hearing). Thus, his request is deemed withdrawn. 38 C.F.R. § 20.704(e)(2007). 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 The veteran contends that his low back disability had its onset with a motor vehicle accident during service. Service medical records show that in October 1983, the veteran was seen for strained muscles of the neck and back after he was involved in a motor vehicle accident. The veteran was prescribed medication, and placed on light duty for three days. When seen for a re-enlistment examination in July 1984, the veteran's spine was noted to have been "normal." A Report of Medical History, also dated in July 1984, shows that the veteran denied having any "recurrent back pain." In mid-December 1986, the veteran was seen for complaints of mid-back stain that had its onset one day previously. The veteran had pain on percussion of the mid-lower back. An assessment of paraspcapular muscle strain was entered. He was instructed not to lift over ten pounds, to apply heat and to take over-the-counter medication. The remainder of the service medical records, to include a July 2001 retirement examination report, are devoid of any father subjective complaints or clinical findings referable to the low back. The veteran's spine was evaluated as "normal" in July 2001. (See, July 2001 retirement examination report). On a July 2001 Report of Medical Assessment, the veteran indicated that his health was "the same" as his last examination. He indicated that he intended to seek VA benefits for "hearing," tonsillitis and arthritis. There was no indication (either from the veteran or the examining physician) that the appellant suffered from any low back pathology at that time. The veteran has alternatively argued that his low back disability was caused by his service-connected bilateral knee and right foot disabilities. (See, T. at pg. 4). Secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310 (2007) and compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (2007). 38 C.F.R. § 3.310 provides, in essence, that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after the aggravation occurred. Id Here, the RO addressed two theories of entitlement-direct and secondary service connection-in a December 2005 statement of the case. In this case, there are VA opinions in support of and against the veteran's claim. In support of the instant claim, are opinions of a VA physician and podiatrist, dated in January 2005 and March 2006, wherein they opined that it was at least as likely as not that the veteran's service-connected low back disability was the result of an in-service motor vehicle accident and changes in gait due to service-connected bilateral knee and right foot disabilities. Neither the VA physician nor podiatrist provided any medical reasoning for their respective opinions, or bolstered them with clinical findings from the appellant's service medical records. (See, January 2005 and March 2006 VA opinions, respectively). In contrast, VA physicians in October 2005 and April 2006 concluded, after a review of the entire claims files, to include the above-referenced January 2005 and March 2006 VA opinions, that it was less likely than not the veteran's low back disability was related to either the in-service motor vehicle accident or the service-connected bilateral knee and right foot disabilities. (See, October 2005 and April 2006 VA opinions). While the opinions above essentially discussed whether or not the veteran's low back disorder was due to the inservice accident or a service-connected disorder, not one of them gave a medical opinion as to whether or not the veteran's service-connected bilateral knee and right foot disabilities aggravated a low back disability. A remand is necessary prior to appellate review of the instant claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for VA spine examination to determine the nature and likely etiology of any current low back disability. The claims files must made available to the VA examiner prior to the examination. The examiner must indicate that a review of the claims file was conducted. With respect to any currently low back disability found upon examination, the VA examiner should express an opinion as to the following question: Is it at least as likely as not (50 percent probability or greater) that the veteran's low back disability was aggravated by (made permanently worse) by the service-connected bilateral knee and right foot disabilities. In formulating the foregoing opinion, the VA examiner is requested to review the other medical opinions of record and, specifically, to address the March 2006 VA podiatrist's opinion that the veteran's low back disability was, "[a]t least likely as not related to the his arch tenderness, the Pronating feet, bilateral pes Planus and recurring planter spurs, Bilateral Retropatellar Syndrome, causing a change in Gait and effecting the back." (See, March 2006 VA podiatrist's opinion). The examiner must provide a rationale for his or her respective opinion. 2. The RO should then readjudicate the claim. If the benefit sought on appeal remains denied, the veteran and his representative should be issued an appropriate supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The purposes of this remand are to ensure notice is complete, and to assist the veteran with the development of his claim. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examinations, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2007). This claim must be afforded expeditious treatment. The law requires that all claims that is 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. 2007). _________________________________________________ DENNIS F. CHIAPPETTA 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).