Citation Nr: 1222437 Decision Date: 06/27/12 Archive Date: 07/10/12 DOCKET NO. 10-09 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a back condition, to include arthritis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1984 to December 1987. The Veteran had subsequent periods of service in the Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO), which, inter alia, denied the Veteran's claim for service connection for a back condition, to include arthritis. The Board notes that the Veteran submitted a Notice of Disagreement (NOD) in April 2009 only as to the issues of service connection for a right knee condition, right ankle condition, and arthritis secondary to such conditions. It does not appear that the Veteran filed an NOD as to the claim for service connection for a back condition. Nevertheless, in January 2010, the RO issued a statement of the case that included the issue of service connection for a back condition, and the Veteran filed a substantive appeal of this decision in March 2010. Thereafter, the RO certified the issue of service connection for a back disability to the Board in October 2011. Based on the foregoing, the Board concludes that the issue of service connection for a back condition is on appeal. This case was previously before the Board in January 2012, when it remanded the Veteran's claim for additional evidentiary development. The Veteran provided testimony at a videoconference hearing before the undersigned Veterans Law Judge in January 2011. A transcript of this hearing has been associated with the Veteran's claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND In the instant case, the Board remanded the Veteran's claim in order to provide the Veteran with a VA examination of his lower back. The examiner was asked to opine whether there was an etiological relationship between the Veteran's lower back disability and either his active duty military service or his service-connected disabilities, to include his service-connected right knee disability. The Veteran received an examination of his lower back February 2012. While the examiner opined that the Veteran's lower back condition was likely not related to service and was instead more likely related to age, the examiner provided no rationale for this opinion. While the examiner stated that the Veteran's back disability was not related to his knee, the record contains no competent opinion indicate whether the Veteran's service-connected right knee aggravates a back disability. Accordingly, a supplemental opinion is necessary. Accordingly, the case is REMANDED for the following actions: 1. Forward the Veteran's claims file to the orthopedist who conducted the February 2012 examination. If this examiner is not available, forward the Veteran's claims file to an examiner of appropriate expertise, with the option for an additional physical examination. In either event, the claims file must be made available to the examiner for review in conjunction with the supplemental opinion, and the opinion must explicitly state that this review occurred. With respect to the Veteran's lower back condition, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability is causally or etiologically related to the Veteran's active service. If the Veteran's lower back condition was not likely related to service, provide an opinion as to whether it is at least as likely as not that the lower back disability is: a. Causally or etiologically related to the Veteran's service-connected disabilities, to include his right knee disability; or b. Aggravated by the Veteran's service-connected disabilities, to include his right knee disability. If the Veteran's service-connected disabilities, to include his right knee disability, aggravate (i.e., permanently worsen) the lower back condition, the examiner should identify the percentage of disability that is attributable to such aggravation. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Thereafter, review the claims folder to ensure that the foregoing development has been completed. In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing the above actions, the Veteran's claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After he has had an adequate opportunity to respond, the issues should be returned to the Board for further appellate review. The Veteran 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 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. 2011). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2011).