Citation Nr: 1306344 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-11 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for a back disability, to include as secondary to the Veteran's service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1957 to June 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Manchester, New Hampshire Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared and provided testimony at a January 2013 Videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with Veteran's file on the "Virtual VA" system. The Board notes that the Veteran filed a timely substantive appeal with the issues of entitlement to an increased rating for a service-connected right knee disability and entitlement to service connection for bilateral hearing loss. However, at his January 2013 Videoconference hearing, the Veteran indicated his desire to withdraw his appeal as to those issues. Under the guidance supplied by the United States Court of Appeals for the Federal Circuit in Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) no outstanding question of law or fact concerning the provision of benefits under the law administered by the VA remains unresolved with regard to these issues. Absent such question, there is no matter over which the Board may exercise its jurisdiction (there is simply nothing that the Veteran is in dispute within on these issues, which have been withdrawn). The Board has, therefore, limited its consideration accordingly. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 finds that additional development is required before the Veteran's claim on appeal can be decided. The Veteran contends that he is entitled to service connection for his current back disability as such disability was caused by his active service, or was aggravated by his service-connected right knee disability. A review of the record shows that on January 2012 X-ray, the Veteran was shown to have advanced degenerative changes of his lumbar spine. The record also shows that in October 2010, the Veteran was granted entitlement to service connection for a right knee disability, effective January 6, 2009. During his January 2013 Videoconference Board hearing, the Veteran testified that his treating physician had told him that the arthritis in his right knee could potentially affect other parts of his body. The Veteran contends that this is the case with his current low back disability. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed above, the Veteran testified that he was told by his treating physician that his service-connected right knee disability "could" affect other parts of his body, and as the VA treatment records currently of record show that the Veteran has advanced degenerative changes of his lumbar spine, the Board finds that the very low threshold in McLendon has been met. Therefore, remand is necessary in order to determine whether the Veteran's current low back disability is related to his active service, to include his service-connected right knee disability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of his current back disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner. All indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's back disability was caused or aggravated by his active service, to include his service-connected right knee disability. A complete rationale should be provided for all opinions expressed must be provided. 2. Then, the RO should readjudicate the issue on appeal. If the benefits sought remain denied, the Veteran and his representative should be furnished an appropriate Supplemental Statement of the Case and 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). _________________________________________________ JOHN J. CROWLEY 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).