Citation Nr: 1319792 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-27 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for low back disorder, to include as secondary to a service-connected left knee disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his nephew ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from September 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The claims file was subsequently transferred to the RO in Muskogee, Oklahoma. In May 2012, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. In August 2012, the Board remanded this claim for additional development. The case has been returned to the Board and is ready 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 Reasons for remand: to obtain an adequate nexus opinion and to attempt to obtain identified private medical records. The Veteran seeks entitlement to service connection for a low back disorder. Primarily, he asserts that this disorder was either caused or aggravated by his service-connected left knee disorder. Specifically, he claims that his left knee has caused him to fall and injure his back in the past. Alternatively, the Veteran has also asserted that his back problems are a direct result of standing at attention for hours while he was on active duty. In August 2012, the Board remanded this claim for additional development. The Board pointed out that the Veteran's service treatment records reveal that he noted a history of "back trouble" on his September 1968 Report of Medical History at enlistment. Specifically, he indicated that he went to a bone and joint hospital for back treatment within the 5 years prior to enlisting in the military. The physician noted that the Veteran had an old traumatic injury of the back which caused pain upon heavy lifting only, with no other symptoms. His September 1968 Report of Medical Examination at enlistment indicated that his spine was within normal limits. An October 1968 radiological report noted a history of old spine injury with present complaints of severe pain and bilateral spasm. However, X-ray examination of the lumbosacral spine revealed no radiological evidence of bone disease or pathology. The Board went on to state that post-service evidence includes an October 1999 magnetic resonance imaging (MRI) of the lumbar spine which revealed degenerative disc disease of the lumbar spine extending from L2-3 through L5-S1, being most severe at L3-4 and L4-5; mild narrowing of the spinal canal at L3-4; disk material bulges into the inferior recesses of multiple neural foramina, along with some facet hypertrophy and disk height loss; as well as moderate right L5-S1 and mild-to-moderate bilateral L3-4 neural foraminal narrowing. The RO/AMC was requested to obtain an opinion as to whether it is at least as likely as not (50 percent likelihood or higher) the Veteran's current back disorder is causally or etiologically related to the Veteran's service and if the physician determines that the current disability is not related to the Veteran's active service, the physician should express an opinion as to whether it is at least as likely as not that the back disorder is either causally related to or aggravated by the Veteran's service-connected left knee disorder. In September 2012, a VA examiner offered a nexus opinion and stated that the back disorder was less likely than not related to the Veteran's active service. The examiner stated that the rationale was that there is a lack of establishment of a chronic low back diagnosis on active duty and lack of continuity following discharge for 22 years. The examiner also stated that the Veteran's back disorder is less likely than not related to the left knee disorder. The rationale included a finding that there was no evidence of a significantly abnormal gait which would result in abnormal weight distribution leading to an early diagnosis of arthritic changes of the spine. The examiner reported that at the time of the arthritic changes were noted in the knee, it did not result in an abnormal gait. However, a review of the file reveals that when the Veteran was underwent a QTC examination in October 2000 and when he was examined in December 2008 by VA, it was noted that he had an antalgic gait. VA records also show that in April 2000, the Veteran was noted to have an antalgic gait. Thus an abnormal gait has been documented in the record. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The United States Court of Appeals for Veterans Claims (Court) has held that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The duty to assist o includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Thus an addendum opinion is required. Additionally, in October 2012, the Board received from the AMC signed copies of VA Forms 21-4142 submitted by the Veteran identifying private treatment from four examiners and authorizing VA to obtain his treatment records. This matter must be addressed by the RO. Accordingly, the case is REMANDED for the following action: 1. The RO must attempt to obtain the records identified by the Veteran in the signed copies of VA Forms 21-4142 submitted by the Veteran in October 2012. The RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Refer the file to the September 2012 clinician for an addendum opinion. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. Based on the review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any diagnosed back spine disorder is due to or aggravated by his service-connected left knee disorder. The clinician is advised that an antalgic gait has been found on prior VA examination. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).