Citation Nr: 1323813 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 04-03 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected hip and knee disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran had active duty from May 1980 to November 1985, and from December 1990 to March 1991, with periods of active duty for training (ADT) and inactive duty for training (IADT) from 1991 to 2004. This matter comes before the Board of Veterans' Appeals (Board) from August 2004 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2011, June 2012, and January 2013, the Board remanded the matter to the RO for additional development. In November 2012, the Veteran and his wife provided testimony before the undersigned Veterans Law Judge at a hearing held at the RO. A transcript of the hearing is associated with the claims folder. 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 Although the Veteran was afforded VA examinations in November 2008, June 2011, and April 2013, the Board finds that a new examination is necessary. In January 2013 the Veteran's claim was remanded by the Board in order that a medical opinion could be obtained as to whether the Veteran's current lumbar spine condition was caused, or chronically worsened, by the Veteran's service-connected hip or knee disabilities. The Veteran was examined by a VA physician assistant in April 2013. The VA examiner opined that the Veteran's current spine complaints are inconsistent with any condition involving the knee or hip. The Board finds that the opinion provided is inadequate for adjudicating the Veteran's claim. The VA examiner did not specifically discuss causation or aggravation. Furthermore, he provided no rationale for his opinion. Consequently, the Board must again remand the Veteran's claim for a medical examination and for a medical opinion regarding whether the Veteran's current spine disability is caused or chronically worsened by the Veteran's service-connected right hip or bilateral knee disabilities. The Board notes that the January 2013 Board remand decision stated that the Veteran's VA medical examination should be performed by a physician. Thus, the Veteran should be provided an examination by a physician if at all possible. In providing an opinion as to whether the Veteran has a current low back disability secondary to any of his service-connected disabilities, the examiner should comment on the July 14, 2009 statement of a private physician that the Veteran has a limp and progressive low back pain following his 2006 hip replacement, and comment on the November 30, 2011 VA treatment record in the Veteran's virtual VA file that states that the Veteran had low back pain that may be deferred or due to the change of gait pattern caused by the right hip pain. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103(a), 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Board notes that although the Veteran was sent a VCAA letter regarding service connection in March 2004, he has not been provided a VCAA letter which informed him of the information and evidence necessary to substantiate a claim for service connection on a secondary basis. The Veteran should be provided VCAA notice regarding his claim for secondary service connection. The Veteran's updated VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided an appropriate VCAA notice letter in regard to his claim for service connection for a low back disability, including as secondary to service-connected disability. The notice letter should include an explanation as to the information or evidence needed to establish a claim for service connection on a secondary basis. 2. Obtain the Veteran's VA treatment records dated from May 5, 2013 to present. 3. Then, the Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the nature and etiology of any currently present low back disability. The claims files must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion with respect to any currently present low back disability as to whether there is a 50 percent or better probability that the disability was caused or chronically worsened by the Veteran's hip or knee disabilities. For the purposes of the opinion, the examiner should presume the Veteran is a reliable historian with regard to his reports of back pain. The supporting rationale for all opinions expressed must be provided. The examiner should specifically discuss the July 14, 2009 statement of the private physician who stated that the Veteran has a limp and progressive low back pain following his 2006 hip replacement and discuss the November 30, 2011 VA treatment record in the Veteran's virtual VA file that states that the Veteran had low back pain that may be deferred or due to the change of gait pattern caused by the right hip pain. 4. Ensure that the information provided in the examination report satisfies the criteria above and, if not, return the report as insufficient. Then readjudicate the Veteran's claim after ensuring that any other development deemed warranted is complete. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. 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). _________________________________________________ MICHAEL A. PAPPAS 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).