Citation Nr: 1306186	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  10-36 114	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for a low back disorder, including as secondary to the service-connected bilateral knee disability.  


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

Tiffany Berry, Associate Counsel 



INTRODUCTION

The appellant served in the National Guard between 1983 and 1989, with various periods of active duty for training.  

This appeal to the Board of Veterans' Appeals (Board) is from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  

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 appellant primarily contends he has a back disorder secondary to his service connected bilateral knee disabilities.  He was scheduled for an examination for VA purposes in October 2009 to investigate his claim, but was unable to attend.  Although the appellant has requested the examination be rescheduled, this has not occurred.  Because the appellant has service connected knee disability and has back discomfort, in the context of this claim, another examination should be scheduled.  Likewise, any outstanding VA or private treatment records relevant to the claim should be sought.  

Accordingly, the case is REMANDED for the following action:

1.  Ask the Appellant whether he has received any evaluation or treatment for his low back disorder, and then attempt to obtain them and associate them with the claims file.  

2.  The Appellant should also be scheduled for a VA compensation examination to confirm whether he suffers from a low back disorder, and if so, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that any diagnosed back disorder was either caused by or aggravated by the Appellant's service-connected bilateral knee disability.

It is essential the examiner discuss the underlying medical rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file.

If no opinion can be rendered concerning this claim, without resorting to mere speculation, explain why this is not possible or feasible - such as clarifying whether the examiner simply is unable to comment since the limits of medical knowledge have been exhausted or, instead, for example, there are multiple possible etiologies with none more prevalent than another, or he needs further information to assist in making this nexus determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data.  Merely saying he cannot comment will not suffice.

The Appellant is hereby advised that failure to report for this examination, without good cause, may have detrimental consequences on this pending claim.  38 C.F.R. § 3.655(b) (2012).

3.  Then readjudicate the appeal.  If the claims remain denied, provide the Appellant and his representative with a supplemental statement of the case and allow an appropriate time for response.

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).



_________________________________________________
MICHAEL E. KILCOYNE
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).