Citation Nr: 1326495 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 06-11 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a chronic back disorder, to include intervertebral disc syndrome (IVDS) of the lumbar spine, as secondary to the service-connected residuals of a left knee strain and residuals of a right knee injury. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and M.S. ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from April 1969 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia, and subsequently transferred to the RO in Atlanta, Georgia. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2009. A transcript of the hearing has been reviewed and associated with the record. This appeal along with the issues of entitlement to service connection for sinusitis and entitlement to service connection for skin rash of the groin, feet, back and chest were before the Board in May 2009 and remanded for further development. The issue of entitlement to service connection for sinusitis was denied by the Board in October 2010. The issue of entitlement to service connection for skin rash of the groin, feet, back and chest was remanded in October 2010 and subsequently granted in March 2012. As such these issues are no longer on appeal and will not be addressed. In October 2010, the Board, inter alia, denied the Veteran's appeal for entitlement to service connection for a chronic back disorder. The Veteran appealed this Board decision to the United States Court of Appeals for Veterans Claims (Court). In July 2012, the Court issued a Memorandum Decision partially vacating the Board's decision insofar as it denied the Veteran's claim for entitlement to service connection for a chronic back disorder, to include intervertebral disc syndrome (IVDS) of the lumbar spine, as secondary to the service-connected residuals of a left knee strain and residuals of a right knee injury, and remanded that part of the claim to the Board for further proceedings consistent with the Court's decision. Thus, the Board's October 2010 decision was otherwise affirmed. 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 Taking into consideration the points raised in the Memorandum Decision, and review of the claims file, the Board finds that further RO action on the issue of secondary service connection for a chronic back disorder is warranted. VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). In the Memorandum Decision, the Court found that the Board relied on an inadequate medical examination. Specifically, the Court pointed out that the August 2009 VA examiner opined that the Veteran's lumbar spine degenerative disc disease was not related to his service-connected knee conditions. However, the examiner's negative nexus opinion was not supported by adequate analysis or a rationale. Therefore, a remand is necessary for a VA examiner to address whether the Veteran's chronic back disorder is secondary to the service-connected knee conditions. Furthermore, the Veteran has stated that the "VA doctors are the ones that told [him] that [his] knees [sic] injuries would cause [his] back to go out although [his] back was already out." Given the Veteran's lay statements, on remand he is free to submit medical statement/evidence from his health care providers regarding the nexus relationship between his knees, gait changes, and back problems to support his appeal. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, particularly focusing on medical statements or opinions which indicate a causal relationship between the Veteran's knees, gait changes, and back problems. Advise the Veteran that he may also submit a statement from a health care provider, preferably a physician, which shows a causal relationship between the Veteran's knees, gait changes, and back problems. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his representative. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can also provide alternative forms of evidence. 2. After the above action is completed, schedule the Veteran for a VA examination before an appropriate specialist for the purpose of determining whether the Veteran's chronic back disorder, to include IVDS of the lumbar spine, is due to the service-connected knee conditions or whether any such back disorder which now exists is aggravated by this service connection disability. The claims file must be made available to and reviewed by examiner in connection with the examination. All tests deemed necessary should be conducted. The examiner should express an opinion as to whether it is at least as likely as not that any chronic back disorder, to include IVDS of the lumbar spine, that the Veteran now has was caused or aggravated (permanently worsened beyond normal progression) by the Veteran's service-connected knee conditions. Please explain the reasons for your opinion. If the examiner finds that the Veteran has a chronic back disorder that was aggravated by his service-connected knee conditions, the examiner should quantify the degree of aggravation, if possible. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. The examiner should discuss the relevant in-service and post-service treatment records and the Veteran's contentions and lay history. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should so state and explain why with a supporting rationale. 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim of secondary service connection for a chronic back disorder, to include IVDS of the lumbar spine. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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). _________________________________________________ DEBORAH W. SINGLETON 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).