Citation Nr: 1333139 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 07-31 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a low back disorder as secondary to service-connected left knee disability. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In March 2001, the Veteran testified at a personal hearing before the RO. A transcript of the hearing is associated with the claims file. The issue on appeal was previously remanded by the Board in May 2013 to obtain a VA examination and nexus opinion regarding the low back disorder. As will become apparent below, part (b) of the second remand directive, namely, that regarding the requested VA examination and opinion for the low back disorder, was not accomplished satisfactorily. As such, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Veteran contends that his low back disorder is either caused or aggravated by the service-connected left knee disability. Service connection for the left knee disability was granted in an August 2013 rating decision. In the May 2013 Board remand, prior to the grant of service connection for the left knee disability, the Board asked that a VA medical examination be scheduled for an opinion regarding the etiology of the low back disorder. Specifically, the Board asked the following: If the examiner's opinion is that the Veteran's left knee disorder was incurred in service, the examiner should offer an opinion as to whether it is at least as likely as not (probability 50 percent of more) that a disability of the lower back is caused by the left knee disorder. If not, opine on whether any such lower back disorder is at least as likely as not (probability 50 percent of more) aggravated by the left knee disorder (emphasis added). In a June 2013 VA spine examination, the VA examiner diagnosed arthritis of the thoracolumbar spine, lumbar strain, and lumbar stenosis. The VA examiner then opined that the claimed conditions were less likely than not proximately due to or a result of the left knee disability. The rationale was that the lumbar spine conditions developed due to aging, and not due to a left knee condition. The VA examiner noted that a medical opinion on the question of whether the low back disorders were aggravated by the left knee disability was "not applicable." The Board notes that the left knee disability was service connected in an August 2013 rating decision, two months after the June 2013 VA examination. This may explain the VA examiner's "not applicable" notation on the question of aggravation. Nonetheless, a supplemental VA medical opinion is necessary in order to address the question of possible aggravation of the low back disorders by the service-connected left knee disability. Accordingly, the claim for service connection for a low back disorder as secondary to service-connected left knee disability is REMANDED for the following action: 1. The RO/AMC should refer the case to the VA examiner who conducted the June 2013 VA examination (or a suitable substitute) for a supplemental medical opinion regarding service connection for a low back disorder as secondary to service-connected left knee disability. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's question without examination of the Veteran, such should be afforded. The relevant documents in the claims folder should be made available for review in connection with this request. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that a disability of the lower back is aggravated by the service-connected left knee disability. Note: The term aggravated means a lasting increase in severity of the underlying disability that is not due to the natural progress of the disease. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 2. When the development requested has been completed, the issue should be readjudicated on the basis of the additional evidence of record. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case, and should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ J. Parker 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).