Citation Nr: 1322371 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 09-21 060 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected degenerative joint disease of the knees. REPRESENTATION Appellant represented by: Chisholm Chisholm & Kilpatrick, LTD WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel REMAND The Veteran had active military duty service from November 1974 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Togus, Maine Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the instant matter was most recently before the Board in May 2012, at which time the Board denied entitlement to service connection for a low back disability, to include as secondary to service-connected degenerative joint disease of the knees. Thereafter, the Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In November 2012, the Veteran's representative and VA's General Counsel filed a Joint Motion with the Court to vacate the Board's decision and remand the case, which was granted by the Court that same month. The Joint Motion indicated that a November 2010 VA examination report was inadequate because the examiner had failed to address the issue of aggravation. The Joint Motion specified that the matter was to be remanded to the agency of original jurisdiction (AOJ) for the AOJ to obtain an addendum to the November 2010 examination that includes consideration of whether it is at least as likely as not that the Veteran's service-connected degenerative joint disease of the knees have made chronically worse the Veteran's diagnosed low back disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that secondary service connection is a two-part issue that involves analysis of causation and analysis of aggravation); 38 C.F.R. § 3.310 (2012). Accordingly, a remand is necessary to ensure compliance with the terms of the Joint Motion. Specifically, the matter must be remanded for the AOJ to seek from the examiner who performed the November 2010 VA examination an addendum that addresses the whether the Veteran's low back disability has been aggravated by his degenerative joint disease of the knees. Accordingly, the case is REMANDED to the AOJ for the following action: 1. The claims folder, and a copy of this remand, must be provided to and reviewed by the VA clinician who conducted the November 2010 VA spine examination. The examiner should provide an addendum to that report that includes an opinion as to whether it is at least as likely as not the Veteran's service-connected degenerative joint disease of the knees has made chronically worse the Veteran's diagnosed low back disability. The examiner should provide support for his opinion. This includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his opinion. (If the requested examiner is no longer available, the claims folder should be forwarded to another VA clinician to answer the question set forth above. If additional evidentiary development is suggested or if another examination is required to formulate an opinion by the examiner, the AOJ should ensure that any additional development is undertaken in order to obtain a definitive opinion as to whether it is at least as likely as not that the Veteran's service-connected degenerative joint disease of the knees has made chronically worse the Veteran's diagnosed low back disability.) 2. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issue on appeal. If the benefit sought is not granted, the appellant should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. No action is required of the Veteran until he is notified by the AOJ. He has the right to submit additional evidence and argument on the matter that 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 or by the Court 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). ________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).