Citation Nr: 1301246 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 08-19 569A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected knee disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from June 1987 to June 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Jurisdiction of the Veteran's claim has been transferred to the RO in Atlanta, Georgia. The Veteran testified before the Board at a September 2011 hearing conducted in Washington, DC. A transcript of the hearing is of record. This case was brought before the Board in January 2012, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The case is once again before the Board for appellate consideration of the issue on appeal. 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 Board remanded the Veteran's claim in January 2012 with instructions to provide him a VA examination in part to determine whether his currently diagnosed lumbar spine disability is secondary to his service-connected knee disabilities. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. The Veteran was provided a VA examination in February 2012, which addressed both direct and secondary service connection. However, while the VA examiner opined the Veteran's lumbar spine disability is not "caused by or the result of" his service-connected knee disabilities, this opinion is not sufficient regarding the question of aggravation. Once VA undertakes a duty to provide a medical examination, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). As the February 2012 examination does not adequately address the question of aggravation, the Veteran must be provided a new VA examination in conjunction with his claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to address the etiology of any currently diagnosed lumbar spine disorder. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file should be made available for review in connection with the examination. The examiner should address whether any current lumbar spine disorder is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), aggravated (chronically worsened beyond normal progression) by his service-connected knee disabilities. The examiner should provide a thorough rationale for his or her conclusion and confirm that the claims file was available for review. Please send the claims folder to the examiner for review in conjunction with the examination. 2. After any additional notification and/or development that the RO deems necessary is undertaken, the Veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). 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). _________________________________________________ S. L. Kennedy 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).