Citation Nr: 1301975 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 05-03 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disorder, to include as secondary to the Veteran's service-connected left knee disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from February 1985 to February 1988. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. When the issue on appeal was previously before the Board in April 2009 and March 2011, it was remanded for further development. At those times, the Board also remanded the issue of entitlement to service connection for a right knee disorder for further development. An April 2012 rating decision granted service connection for an ACL tear of the right knee and instability impairment of the [right] knee. In correspondence received in May 2012, the Veteran raised the issue of entitlement to compensation under 38 U.S.C.A. § 1151 based on failure to treat bilateral knee arthosisis and failure to evaluate for bilateral knee ACL reconstruction. A November 2012 Informal Hearing Presentation also addressed this issue. The 1151 issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 A preliminary review of the record indicates that this claim requires additional development. The Board's March 2011 remand asked the AMC/RO to forward the claims folder to the VA examiner who had conducted a June 2009 VA examination. The VA examiner was asked to address whether it was at least as likely as not that the Veteran's service-connected left knee disorder aggravated any currently diagnosed low back disorder. In an April 2011 medical opinion, a different VA examiner provided a pertinent diagnosis of lumbar myofascial syndrome that was less likely as not to have been caused by and the result of active military service. The examiner explained that there was no evidence in the Veteran's claims file or service treatment records of lumbar injury while on active duty. The examiner stated that, in addition, he knew of no medical authority which supported the contention that lumbar pain/lumbar myofascial syndrome was caused by or the result of the Veteran's current left knee condition. The examiner did not address aggravation. Since the remand, service connection has been granted for a right knee disorder. Contrary to the examiner's review, the Veteran's service treatment records reflect that in December 1987 he sought treatment for lower back pain after hurting his back while bowling. On physical examination, the Veteran had lumbar tightness and reduced range of motion. The assessment was back strain. As the April 2011 VA medical opinion is based on an inaccurate review of the Veteran's medical history, it is inadequate, and additional development is required. Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, the Board also finds it significant that the June 2009 VA examination report, and a May 2007 VA examination report, also fail to address whether the Veteran's current low back disability is related to his December 1987 back strain. An opinion is required. Service connection has been granted for a right knee disorder, so the opinion on remand should address aggravation by either knee. As there has not been substantial compliance with the remand directives, the appeal must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). The claims file contains a CD-ROM disc received from Social Security Administration (SSA). None of the documents on this disc have been converted to hardcopy form by the RO for inclusion in the record, as is required. On remand, the RO must print out all the records contained on the SSA and associate the hardcopies with the claims file. Accordingly, the case is REMANDED for the following action: 1. Print out all the records contained on the SSA CD and associate the hardcopies with the claims file. 2. After completion of the foregoing, afford the April 2011 VA examiner the opportunity to supplement his report and provide an opinion as to whether it is at least as likely as not that the Veteran's currently diagnosed low back disorder is related to the December 1987 assessment of back strain, as noted above, or is caused or aggravated by the service-connected knee disorders. The claims folder must be made available to the examiner for review. Based on the review, the examiner should address the following: (a) Is it at least as likely as not (50 percent or higher degree of probability) that any current low back disorder was incurred in or aggravated by service? (b) Is it at least as likely as not (50 percent or higher degree of probability) that any current low back disorder was caused by his service-connected right or left knee disabilities? (c) Is it at least as likely as not that the Veteran's service-connected right and left knee disabilities, aggravated any current low back disorder? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of low back disability (i.e., a baseline) before the onset of the aggravation. A complete rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation the examiner should so state and also explain why such an opinion cannot be made. If the April 2011 VA examiner is unavailable or determines that the requested opinion cannot be provided without an examination, the AMC/RO should schedule the Veteran for a new VA examination and direct the new examiner to include an opinion as to the questions addressed above. 3. When the requested development has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ M. E. LARKIN 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).