Citation Nr: 1331417 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-22 369A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a low back disability, including as secondary to a service-connected left hip disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from February to October 1988. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in relevant part, denied the Veteran's claim of entitlement to service connection for a low back disability. The RO denied the claim on the premise there was not the required evidence showing this alleged disability was incurred during her military service or caused by it. But in another rating decision since issued in September 2009, during the pendency of this appeal, the RO also denied the claim on the premise this low back disability alternatively is secondary to a service-connected left hip disability. Therefore, both direct and secondary service connection have been considered in denying this claim. This claim requires further development before being decided on appeal, however, so the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Veteran alleges she has experienced low back pain since her service as a result of a left hip fracture she sustained while in service. Supplemental medical comment is needed concerning this determinative issue of whether her low back disability is because of her military service, either because it is a direct result of the injury in service or a secondary residual of her consequent left hip disability. The VA compensation examination she had concerning this claim is inadequate as the examiner did not fully address the elements of secondary service connection in rendering the opinion. Specifically, the examiner only commented on whether the service-connected left hip disability had caused the low back disability, not also whether it alternatively had aggravated it. See 38 C.F.R. § 3.310(a) and (b) (2013). Two opinions are required for secondary-service-connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? So both the causation and aggravation prongs must be discussed in order for the opinion to be adequate. See Allen v. Brown, 7 Vet. App. 439 (1995). Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b). The opinion therefore is unacceptable, requiring an addendum opinion addressing this additional possibility. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The examiner determined it was less likely than not the Veteran's low back pain was caused by or a result of her service based on a lack of medical records indicating prior treatment or complaints. This essentially addresses only direct service connection, or a direct link to injury or complaints during service. Moreover, to the extent it may be interpreted as an opinion also regarding secondary service connection, stating the disability is "not caused by or a result of" a disability does not as mentioned sufficiently address the issue of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Therefore, the Board must remand for this necessary medical comment on this equally viable basis of entitlement. Further, the nature of any current low back disability requires further development, as it is unclear whether the Veteran has a diagnosable low back disability as distinct from symptoms of her left hip disability. The most recent VA examination in this case is from January 2010, over three and a half years ago. There are also no treatment records in the file since 2010. During this more recent period, it is possible the Veteran's low back disability may have progressed to the point where it is diagnosable and attributable to her service-connected left hip disability, if not directly to her service. So additional medical comment is needed for this reason, as well. There also appear to be pertinent, outstanding treatment records. VA has a duty to obtain identified, pertinent medical records. 38 C.F.R. § 3.159(c). The Veteran has stated that she receives treatment at the VA Medical Centers (VAMCs) in Birmingham and Tuskegee, Alabama. The most recent records from these facilities in the claims file only date up to May 2010. Thus, to ensure a complete record, the Board also must make certain there are no more recent evaluation or treatment records needing to be obtained and considered. These additional records, assuming they in fact exist, since generated and maintained by VA, are constructively in the file, even if not physically so. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Veteran also indicated during her January 2010 VA examination that she had received private medical treatment for her low back pain. While there are some private medical records in her claims file, it is unclear whether these are the extent of them. The AMC therefore needs to clarify whether there are additional private evaluation and treatment records also needing to be obtained and considered. 38 C.F.R. § 3.159(c)(1). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Ask the Veteran to identify all sources of additional evaluation and treatment she has received for her low back and left hip disabilities and, if necessary, to complete the authorization (VA Form 21-4142) allowing VA to obtain her confidential private evaluation and treatment records. Her list of additional evaluation and treatment should if applicable include, but is not limited to, all she has received at the VAMCs in Birmingham and Tuskegee, Alabama, and privately since 2010. The amount of effort needed to be expended in obtaining these additional records, assuming they exist, depends on who has custody of them. If they are not in the custody of a Federal department or agency, then 38 C.F.R. § 3.159(c)(1) controls, whereas subpart (c)(2) does if they are. So make as many attempts as required to comply with this VA regulation, again, depending on who has custody of the records. Also appropriately notify the Veteran if unable to obtain identified records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, obtain a supplemental medical opinion first ascertaining all current low back disability. So the examiner is initially asked to specify all current diagnoses referable to the Veteran's low back and all she has received since the filing of this claim. For all diagnoses the Veteran has or has had since the filing of this claim, indicate the likelihood (very likely, as likely as not, or unlikely) the low back disability is: (a) directly related or attributable to her military service from February to October 1988, including especially to her left hip fracture in service; (b) if involving arthritis, initially manifested during the one-year presumptive period following her service, meaning by October 1989, or (c) is secondarily related to her service, meaning caused OR aggravated by a service-connected disability, in particular, her left hip disability that she has as a result of the fracture in service. In providing responses, the examiner must discuss the underlying medical rationale, if necessary citing to specific evidence in the file supporting conclusions. All relevant lay and medical evidence must be considered, and the examiner should take note of the Veteran's lay statements regarding low back pain since her service. If the examiner is unable to provide any opinion without resorting to mere speculation, the examiner must discuss why a definitive response is not possible. So merely saying he/she cannot respond will not suffice. 3. Ensure the medical opinion is responsive to (a) direct, (b) presumptive and (c) secondary service connection and, regarding (c), both causation AND aggravation. If not, take corrective action. 38 C.F.R. § 4.2. 4. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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 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). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).