Citation Nr: 1328209 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 08-38 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a sciatic nerve disability, to include as secondary to a low back disability. 3. Entitlement to service connection for a bilateral knee disability, to include as secondary to a low back disability. REPRESENTATION Veteran represented by: Sean A. Ravin, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran had active service from February 1963 to February 1966, including service in Korea. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2006 decision by the Department of Veterans Affairs (VA) Chicago, Illinois, Regional Office (RO), which denied service connection for the issues noted above. The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (AVLJ) in April 2011. A transcript of the hearing is associated with the claims file. In a November 2011 decision, the Board denied service connection for the claimed low back, sciatic nerve, and bilateral knee disabilities. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court). In March 2013, the Court issued a Memorandum Decision (single judge) setting aside the November 2011 Board decision that denied service connection for low back sciatic nerve, and bilateral knee disabilities. It remanded the claims for action consistent with its decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In its Memorandum Decision, the Court essentially found that the Board improperly relied on a March 2006 VA examination that was based upon an inaccurate factual basis. See Reonal v. Brown, 5 Vet.App. 458, 794 (1993) (noting that a medical opinion based upon an inaccurate factual predicate has no probative value). Specifically, the March 2006 examiner only considered one instance in service wherein the Veteran sought treatment for back complaint. In fact, there were three separate instances. Additionally, the Court further found that the Board failed to satisfy the duty to assist the Veteran because it failed to obtain his report of medical history at separation. The Court stated that upon remand the Board must secure this outstanding record, or if it is unable to obtain this record notify the Veteran pursuant to section 5103A (b) (2) (A). In light of the guidance provided by the Court in its Memorandum Decision, the Board finds that a remand is necessary regarding the Veteran's service connection claims. The Veteran should be afforded a new examination and the RO should attempt to obtain the outstanding service treatment record described in the Memorandum Decision. Accordingly, the case is REMANDED for the following actions: 1. The RO should undertake appropriate development to obtain a copy of any outstanding records pertinent to the Veteran's claims. The RO should specifically attempt to obtain the Veteran's own report of medical history at separation and associate it with the claims file. All attempts to secure this document should be noted in the claims file. If the report of medical history is not available, the RO should notify the Veteran pursuant to section 5103A (b) (2) (A) and follow the appropriate protocol. 2. Then, the RO should schedule the Veteran for a physical examination to assess the nature and etiology of his claimed low back, sciatic nerve, and bilateral knee disabilities. The examiner should review the Veteran's VA claims folder, including any pertinent evidence contained in Virtual VA/VBMS, and a copy of this Remand; and after a thorough examination, should provide opinions, with supporting rationale, as to the following questions: a.) Is it as likely as not (50 percent probability or greater) that the Veteran has a current disability of the low back, sciatic nerve, or bilateral knees that is related to an injury, disease, or event during service? The examiner is asked to specifically comment on the three in-service treatments for complaints of low back problems, dated in February 1964, September 1964, and January 1965. b.) If the examiner finds that the Veteran's low back disability is related to his military service, the examiner is asked to opine as to whether it is as likely as not (50 percent probability or greater) that the Veteran's sciatic nerve and bilateral knees was aggravated (chronically worsened) by his low back disability? If the examiner determines that the Veteran's sciatic nerve and bilateral knees is aggravated (i.e., permanently worsened) by the low back disability, the examiner should identify the percentage of disability which is attributable to the aggravation. See 38 C.F.R. § 3.310 (as in effect prior to October 10, 2006); Allen v. Brown, 7 Vet. App. 439 (1995). The examiner is informed that "aggravation" is defined for compensation purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. A report should be prepared and associated with the Veteran's VA claims folder. The examiner is requested to provide the basis for all opinions reached. If the examiner is unable to supply the requested opinions, he or she should provide an explanation for why such opinion could not be rendered. 3. The RO should undertake any other development it determines to be warranted. 4. Then, the RO should readjudicate the Veteran's claims on appeal. If any claim remains denied, a Supplemental Statement of the Case must be furnished to the Veteran and his representative and they must be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). _________________________________________________ LANA K. JENG Acting 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).