Citation Nr: 1336459 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 12-18 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a low back disorder, to include as secondary to service connected right knee disability, or to a left ankle disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1978 to December 1986 and had additional Reserve duty. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran was afforded a March 2013 hearing before the Board, a transcript of which has been associated with the record through Virtual VA. 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 contends that he is entitled to service connection for a low back disorder, to include radiation to his left lower extremity. In June 2012 the RO granted entitlement to service connection for disabilities, to include right knee status-post patellar realignment and meniscal repair, instability of the right knee, and for left ankle status-post reconstruction and ligament repair. Specifically, the Veteran reported that while in service he was involved in several hard helicopter landings, was at times thrown around the aircraft during bumpy rides (as a flight medic he was not buckled in, but rather treating the patient), had some jumps from four to five feet from the helicopter, was occasionally lowered with a device that resulted in a bumpy landing, and lifted some very heavy patients. He described one instance in which the helicopter's blade struck a tree, and it landed quickly from a height of approximately 40 to 50 feet. At the hearing, the Veteran's representative emphasized that the service treatment records contain a notation in August 1986 following the aircraft mishap, which record seemed to have been overlooked by the recent examiner. The Veteran reported that to avoid being grounded, he chose to self-treat his back pain by going to the gym spa and taking Motrin. The Veteran's diagnoses regarding his low back include lumbar degenerative disc disease, and lumbar intervertebral disc syndrome, more on the left side, as well as radiculopathy, especially to the left lower extremity. The Veteran reported that following years of self-treating his back pain, he sought medical treatment in 1994, and in approximately 2001 had a magnetic resonance imaging test that revealed his herniated disc and the presence of degenerative disc disease. He explained that he also experiences loss of disk space and osteoarthritis. At his most recent VA examination in October 2012 the Veteran reported that a physical therapist told him his back pain might be due to fracturing his knee, in addition to the disease and damage to his low spine. At his hearing the Veteran also indicated his belief that his back, knee, and ankle injuries were "all one big thing." As such, the Veteran has raised a theory of entitlement based on secondary service connection, which has not yet been addressed. In addition, the Veteran has indicated that the VA examination was inadequate for adjudication purposes. The examiner reasoned that with no supporting evidence of back problems during service, the connection of the Veteran's back condition to service could not be established, and it was less likely than not incurred in or caused by service. As such, the VA examiner provided a negative nexus opinion with reasoning that relied on an absence of documented episodes of back pain in service or for many years thereafter. The Veteran has, however, indicated that he experienced back pain in service, and treated it at that time, as well as thereafter with Motrin, heating pads and hot tub soaks. He has additionally discussed his self-treatment of back pain, to include radiation, since his 1986 injury in service. The Veteran is competent and credible to report his symptomatology, and the Board observes that he has experience as a flight medic in service. As such, the Board finds that the opinion obtained by the VA examiner is not sufficient, and remand for another VA opinion or clarification is necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Stegall v. West, 11 Vet. App. 268 (1998). In light of the above, the Board finds that the Veteran is entitled to another VA opinion, wherein the examiner considers his lay statements of in-service back symptomatology and treatment in providing an opinion. In addition, the examiner should provide an opinion regarding a secondary theory of entitlement. Specifically, the examiner should address whether the Veteran's low back disorder was caused or worsened by service-connected right knee or left ankle disabilities. Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the October 2012 VA medical examiner, if available, for the purpose of determining the nature and etiology of the Veteran's low back disorder, and obtaining a clarification. If that examiner is unavailable, records should be sent to a similarly situated examiner to obtain the requested opinion. The examiner should be provided access to Virtual VA. If it is determined that an additional examination is needed, such examination should be conducted. All necessary diagnostic tests, as determined by the examiner, should be completed and all pertinent symptomatology and findings should be reported in detail. After fully reviewing the Veteran's medical history to include his reported symptomatology, the examiner should be asked to provide an opinion as to whether any diagnosed low back disorder is at least as likely as not (50 percent probability or more) incurred in or caused by service. The examiner should also opine as to whether it is at least as likely as not that the Veteran's right knee or left ankle disabilities (a) caused, or (b) worsened the low back disorder. The examiner should provide a rationale for all conclusions reached. The examiner is reminded to account for the Veteran's reported symptomatology. 2. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 3. After the development requested, review the examination report to ensure that it is in compliance with the directives of this REMAND. If the report is deficient in any manner, implement corrective procedures. 4. After undertaking any additional development deemed appropriate, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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. 2013). _________________________________________________ MICHAEL D. LYON 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).