Citation Nr: 1333096 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 08-26 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran served on active duty from October 1988 to November 1992. This matter came to the Board of Veterans' Appeals (Board) from a January 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in August 2011, August 2012 and April 2013 for further development. The Veteran testified at an April 2011 and March 2013 hearings before the Board at the RO (Travel Board). Transcripts are 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 Although the Board regrets further delay, the case must be returned to the RO for an adequate opinion regarding service connection on a secondary basis. Barr v. Nicholson, 21 Vet. App. 303 (2007). During service, the Veteran fractured his left fibula and underwent internal fixation. He and his representative have asserted that service connection is warranted for a low back disability as secondary to the now service-connected left ankle condition. They claim that the Veteran was told that a leg length discrepancy due to the left ankle surgery can cause back problems. A September 2007 VA treatment record included the Veteran's report of back pain and showed he walked with an antalgic gait, slightly limping on the right. The report of a September 2011 VA examination included a diagnosis of degenerative changes of the lumbar spine, most pronounced at L4-L5 and the examiner's opinion on direct and secondary service connection, but no comment on aggravation. The Board remanded the claim in April 2013 to obtain an adequate opinion. Unfortunately, the opinion provided after the June 2013 VA examination is still inadequate. The VA examiner did not provide any rationale for the opinion and did not address whether there is any length discrepancy between the Veteran's legs and did not address whether any such discrepancy contributed to the low back disability. In addition, the statements (repeated from the prior examination) that the Veteran "DENIED ANY KNOWN TRIGGERS OR AGGREVATOR'S [sic] ASSOCIATED WITH EXTERNAL ENVIRONMENTAL OR ANATOMCAL REGIONS OUTSIDE OF HIS LOW BACK, DIFFICULTY WITH AMBULATION..." do not appear to be accurate (as the Veteran has testified to one limb being shorter than the other, and to having an altered gait) and seem to have been part of the basis of the VA examiner's opinion. Accordingly, the case is REMANDED for the following action: 1. The claims file should be forwarded to the June 2013 VA examiner for review and an addendum to the examination answering the questions set forth below. If the June 2013 VA examiner is no longer available or determines that an opinion cannot be provided without an examination, the Veteran should then be afforded an appropriate VA examination to determine the nature, extent and etiology of his low back disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. In providing the opinion, the examiner should specifically address the following: (a) Does the Veteran have a leg length discrepancy as a result of the service-connected post operative fracture of the distal left fibula or decreased sensation of the left foot and ankle? (b) What is the significance of the September 2007 VA treatment record that showed the Veteran walked with an antalgic gait, slightly limping on the right. (c) Is it at least as likely as not (a 50% or higher degree of probability) that any current low back disability is proximately due to or caused by the Veteran's service-connected post operative fracture of the distal left fibula or decreased sensation of the left foot and ankle? (d) Is it at least as likely as not (a 50% or higher degree of probability) that any current low back disability has been aggravated by the Veteran's service-connected post operative fracture of the distal left fibula or decreased sensation of the left foot and ankle? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of low back present (i.e., a baseline) before the onset of the aggravation. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issue on appeal. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). _________________________________________________ M. E. LARKIN 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).