Citation Nr: 1313604 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 08-26 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from October 1988 to November 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for a low back disability, to include on a secondary basis. This case was before the Board in August 2011 and again in August 2012, and was remanded for additional development of the record and/or to ensure due process. The case is again before the Board for appellate consideration. 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 Veteran asserts service connection is warranted for a low back disability. He claims he has a leg length discrepancy due to the surgery he had for his service-connected left ankle condition, and that he was told this can cause back problems. A VA examination of the feet in December 1992 discloses the Veteran had a normal gait and did not limp. VA outpatient treatment records disclose that the Veteran reported low back pain for two to four weeks in February 2007. The assessment was back pain, possibly secondary to degenerative joint disease changes. He reported low back pain in September 2007. An examination showed the Veteran walked with an antalgic gait, slightly limping on the right. Following a VA examination of the spine in September 2011, the diagnosis was degenerative changes of the lumbar spine, most pronounced at L4-L5. The examiner commented that the low back condition was not permanently aggravated by service, and it was not proximately due to or aggravated by his service-connected left ankle and left foot disabilities; however, the rationale was limited to service connection on a direct basis. The examiner did not address whether the service-connected left ankle or foot disabilities aggravated the low back. Service connection is in effect for fracture of the distal left fibula, evaluated as 10 percent disabling, and for decreased sensation of the lateral aspect of the left foot and ankle, evaluated as 10 percent disabling. When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See also 38 C.F.R. § 3.310(b) (2012). 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 (2007). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran's claims folder to the examiner who conducted the September 2011 VA examination of the spine. If that examiner is unavailable or determines that the opinion cannot be provided without an examination, the Veteran should be scheduled for an examination. The examiner should be requested to furnish an opinion concerning whether it is at least as likely as not (50 percent probability or higher) that the Veteran's service-connected postoperative fracture of the distal left fibula or decreased sensation of the left foot and ankle caused or aggravated (permanently worsened the underlying disorder beyond its normal course) the Veteran's low back disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of back disability (i.e., a baseline) before the onset of the aggravation. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Following completion of the above, the RO should review the evidence and determine whether the Veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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).