Citation Nr: 1330792 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 11-02 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine (lumbar spine disability), to include as secondary to service-connected left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from January 1963 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in October 2011. A transcript of the proceeding is of record. 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 The Veteran claims, in part, that his lumbar spine disability was caused or aggravated by an altered gait from his service-connected left knee disability. Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. Service connection may also be established for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002). Pursuant to 38 C.F.R. § 3.310 (2013), service connection not be awarded on an aggravation basis without the establishment of a pre-aggravation baseline level of disability which can be compared to the current level of disability. Pre-aggravation baseline level of disability should be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the non-service-connected disease. 38 C.F.R. § 3.310 (2013). At an April 2009 VA examination, the examiner diagnosed moderate DDD and degenerative joint disease (DJD) of the lumbar spine. The examiner also provided a medical opinion that the Veteran's DDD and DJD of the lumbar spine is less likely as not (less than 50/50 probability) caused by or related to his service-connected left knee disability. The examiner attributed the conditions to the normal aging process. The examiner concluded that "[t]here is a lack of evidence to support a relationship between his left knee DJD and his L-spine condition and is therefore less likely as not related to or aggravated by his L-spine condition." Unfortunately the examiner did not answer the question regarding whether the Veteran's lumbar spine condition was aggravated by his service-connected left knee disability. Therefore, on remand an additional medical examination and opinion should be obtained. At his hearing, the Veteran testified that he was treated for a low back condition in relation to a motor vehicle accident in the early 2000's, although he also testified that his low back hurt before the motor vehicle accident. Records pertinent to this treatment should be requested. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain all relevant VA treatment records dating since December 2010 from the Louisville, Kentucky VA Medical Center and associated clinics. 2. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers who have treated him for a lumbar spine disability, particularly around the early 2000's. After securing any necessary release, request any relevant records identified which are not duplicates of those contained in the claims file. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. 3. After the above has been completed to the extent possible, schedule the Veteran for a VA spine examination. The claims file must be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disability is etiologically related to service? Please explain why or why not. b. If not related to service, is it at least as likely as not that the Veteran's lumbar spine disability was caused by his service-connected left knee disability, to include any gait disturbance. Please explain why or why not. c. If not caused by the service-connected left knee disability, is it at least as likely as not that the Veteran's lumbar spine disability is permanently worsened beyond natural progression (aggravated) by his service-connected left knee disability. If the examiner finds that the Veteran's lumbar spine disability was aggravated by his service-connected left knee disability, the examiner should attempt to determine the baseline level of low back disability prior to aggravation by the left knee disability. If the examiner cannot provide the above opinion(s) without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. After completing the above development to the extent possible and any additional development deemed necessary, the claim should be readjudicated. If the claim remains denied, send the Veteran and his representative a supplemental statement of the case and give them time to respond. Thereafter, the case should be returned to the Board if in order. The appellant 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 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). _________________________________________________ K. A. BANFIELD 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) (2013).