Citation Nr: 1313858 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 06-14 100A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to March 1970. He is the recipient of the Purple Heart medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Cleveland, Ohio. A July 2009 Board decision previously denied the Veteran's claim (with regard to the low back claim in particular, a December 2000 Board decision denied the Veteran's claim on the merits, and the July 2009 Board decision denied the Veteran's request to reopen his claim). In February 2010, the Veteran's attorney and VA's General Counsel filed a joint motion with the United States Court of Appeals for Veterans Claims (Court) to vacate the Board's July 2009 decision with regard to that matter and remand it to the Board. A March 2010 Court order granted the motion, thereby vacating the Board's July 2009 decision on this matter and remanding it to the Board for further review. In March 2011, the Board reopened the Veteran's claim for service connection for a low back disability, and the Board remanded the Veteran's claim for further development. In June 2012, the Board again remanded the Veteran's claim for further development. This matter has returned to the Board for further review. 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 recognizes that this claim has already been remanded to the RO twice. Unfortunately the Board finds that further RO action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on the matter on appeal. In March 2011 and June 2012, the Board remanded the claim to afford the Veteran VA examinations to determine whether it is at least as likely as not that the Veteran's current low back disability was related to his active duty service. These examinations were performed in March 2011 and July 2012. The March 2011 VA examiner opined that it would be merely speculative to say that the Veteran's low back disorder was at least as likely as not related to his active service. The July 2012 VA examiner opined that the Veteran's low back disorder was less likely than not incurred in or caused by the Veteran's active service. These opinions have been used by the RO and the AMC to deny service connection on a direct basis. However, service connection may also be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board recognizes that the Veteran has been granted service connection for traumatic arthritis of the right and left knees. Indeed, in a January 2013 statement, the Veteran remarked that his knees had contributed to his spinal condition. None of the medical evidence of record addresses the theory that the Veteran's low back disorder is secondary to his knees. As such, in order to afford the Veteran proper assistance in developing his claim, remand is in order to obtain a medical opinion regarding entitlement to service connection for a low back disorder as secondary to a service-connected bilateral knee disorder. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with a new VA examiner to determine the current nature and the etiology of any low back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. For each low back disability manifested, the examiner should provide an opinion with supporting rationale as to whether any disability is either (1) due to or (2) aggravated by the Veteran's service-connected disabilities, to specifically include his service-connected bilateral knee disabilities. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If any low back disability is not found to be related to his service-connected disabilities, please explain the rationale for such opinion. If no etiological opinion may be provided without resorting to speculation, please provide a thorough explanation for why such an opinion could not be obtained. As to any opinions expressed, it would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 2. Then, readjudicate the Veteran's claim. If the claim remains denied, he should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ DAVID L. WIGHT 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).