Citation Nr: 1330326 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 05-14 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a back disability, to include as secondary to a service connected bilateral knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from March 1978 to March 1983. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This appeal was previously before the Board. In February 2011, the claim was reopened and remanded for additional development, and in November 2011 it was remanded for a hearing before a member of the Board, which was accomplished in May 2013. In May 2013, the Veteran submitted additional evidence that was not reviewed by the RO. However, he waived RO consideration of the additional evidence, permitting the Board to consider such records in the first instance. See 38 C.F.R. § 20.1304(c) (2012). Hence, the additional evidence is being considered. The issues of service connection for a dental disability, an increased rating for service connected bilateral knee disorder, and total disability based on individual unemployability have been raised by the record as noted in the February 2011 Board decision and in a July 2013 statement by the Veteran, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 Service treatment records dated in July 1981 reflect that among the complaints at the time the Veteran was seen for acute tonsillitis, was back pain. (He also complained of a sore throat, chills, earaches and dizziness.) No other service record shows any back complaints or treatment, although the Veteran reported a history of recurrent back pain on the March 1983 Report of Medical History he prepared in connection with his service discharge. However, clinical evaluation at that time revealed no abnormalities of the spine. Post service records show a complaint of back pain in April 1993, July 1995, and then more consistently beginning in 2005. These later records show diagnoses of osteoarthritis and disc herniation or bulging at L1-2, L3-4 and L4-5. For his part, the Veteran has not reported a consistent history. In a 2005 record, the Veteran reported he had no back pain, yet at the May 2013 Board hearing, the Veteran testified that his back began to hurt in 2001. In 2008, the Veteran related his back problems to a fall from a ladder in 1988 or 1989. When examined in connection with his claim in May 2011, the examiner concluded (without explanation) that the Veteran's low back condition was not likely related to his service connected knee disability, but in an August 2011 correspondence with the RO, indicated that "there is adequate documentation to relate the present low back condition to the treatment he received while in service for his back problem." Since the Veteran had no obvious back treatment during service, the basis for the examiner's opinion is unclear. Clarification of this point should be sought. Likewise, an explanation for his conclusion regarding secondary service connection should be sought. Also on remand, pertinent, outstanding records should be physically or electronically associated with the claims folder. Accordingly, the case is REMANDED for the following actions: 1. The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Relevant treatment records dating from July 2013 to the present from the Tuskegee VA Medical Center should be obtained. 3. Then send the claims folder to the examiner who conducted the May 2011 VA back examination, or if the examiner is no longer available, a suitable replacement, to request that the examiner prepares an addendum to the report. The Veteran need not be re-examined unless an examination is deemed necessary. If a physical examination is deemed necessary, all indicated testing should be accomplished. The claims file should be reviewed by the examiner, which review should be acknowledged. Noting the documented history as described above, [that showed a single reference to back pain in service treatment records in 1981; a complaint of recurrent back pain at service discharge in 1983, but with a normal examination at the time; and post service records of complaints in 1993, 1995 and since 2005; as well as the what the Veteran has reported over the years], the examiner should set forth an opinion as to whether it is likely, unlikely or at least as likely as not, that the onset of the Veteran's current back disability was in service. The examiner also should opine whether any altered gait, or altered posture caused by the Veteran's service connected bilateral knee disabilities caused him to develop any current lumbar spine disability, or caused a permanent increase in severity of any lumbar spine disability beyond its natural progression. Lastly, the examiner should opine whether the Veteran's service connected knee disabilities caused a fall which in turn would have produced an injury that is the basis for any current lumbar spine disability. A rationale must be provided for any opinion expressed. If an opinion cannot be provided without resort to mere speculation, the examiner must explain why that is so, indicating what facts would be necessary to render a non-speculative opinion, or whether only a speculative opinion could be given due to the limits of medical knowledge, or other reasons as appropriate. 4. Then readjudicate the appeal. If the claim is denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond, before the case is returned to the Board. 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 E. KILCOYNE 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).