Citation Nr: 1336732 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 04-35 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a low back disability (including osteoarthritis of the lumbosacral spine), to include as secondary to the service-connected residuals of a shell fragment wound to the left knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from June 1961 to November 1969, and from February 1970 to May 1982, a portion of which represented service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran in this case testified at a Travel Board hearing before the undersigned Veterans Law Judge in November 2010. A transcript of that hearing is included in the Veteran's claims folder. In a decision of June 2011, the Board denied entitlement to service connection for a chronic skin disorder, peripheral neuropathy of the lower extremities, a cervical spine disability, and osteoarthritis of the left knee. The Board additionally denied entitlement to a compensable evaluation for a scar of the left knee, and an evaluation in excess of 10 percent for the residuals of a shell fragment wound of that same knee. At that same time, the Board found that new and material evidence had, in fact, been submitted sufficient to reopen the Veteran's previously denied claim for service connection for a respiratory disorder, and dismissed the Veteran's appeal as to the issue of service connection for bilateral hearing loss, given that the Veteran had withdrawn his appeal regarding that particular issue. At the time of its June 2011 decision, the Board remanded for additional development the issue of entitlement to service connection for a chronic respiratory disorder on a de novo basis, as well as the issue of entitlement to service connection for osteoarthritis of the lumbar spine. In a subsequent decision of November 2012, the Board denied entitlement to service connection for a chronic respiratory disorder, to include asbestosis. At that same time, the Board remanded for additional development the issue of entitlement to service connection for osteoarthritis of the lumbar spine, to include as secondary to the Veteran's service-connected residuals of a shell fragment wound to the left knee. In May 2013, the Veteran's appeal was once again remanded for additional development. The case is now, once more, before the Board for appellate review. Finally, for reasons which will become apparent, this appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND The Veteran in this case seeks entitlement to service connection for a low back disability, to include osteoarthritis of the lumbosacral spine. In pertinent part, it is contended that the Veteran's current low back disability is the result of a fall from an armored personnel carrier in service. In the alternative, it is contended that the Veteran's current low back pathology is in some way causally related to his exposure to extreme cold while on active military service. Finally, it is contended that the Veteran's current low back disability is in some way proximately due to, the result of, or aggravated by his service-connected left knee disability. The Board notes that, at the time of the aforementioned Board remand in May 2013, it was requested that the VA examiner who had conducted a December 2012 examination, or other appropriate VA examiner, once again review the Veteran's claims file (including Virtual VA electronic records, and, in particular, a June 1977 service treatment record), and, after having done so, provide an addendum opinion regarding whether the Veteran's current low back pathology had its origin during, or was in some way related to, the Veteran's period of active military service. The examiner was, additionally, requested to provide an addendum opinion regarding whether the Veteran's current low back pathology was in some way proximately due to, the result of, or aggravated by his service-connected left knee disability. A review of the record discloses that, in June 2013, the VA examiner who had conducted the December 2012 VA examination provided the requested addendum opinion. That opinion addressed the question of whether the Veteran's low back pathology was directly the result of an incident or incidents of service, as well as the question of whether that same pathology was in some way causally related to the Veteran's service-connected left knee disability. In providing a rationale for his opinion, the examiner did, in fact, make note of the June 1977 service treatment record which had, apparently, previously been overlooked. However, he failed to note, or even mention, an August 1980 service treatment record in which the Veteran received a diagnosis of lumbosacral strain. In fact, on more than one occasion during the course of his addendum opinion, the examiner indicated that there was "no documentation in the service medical records regarding the Veteran's back." As noted above, given the June 1977 and August 1980 records of inservice treatment for various back problems, this is clearly not the case. Under the circumstances, additional development of the evidence is necessary prior to a final adjudication of the Veteran's claim for service connection. Accordingly, the case is once again REMANDED to the AMC/RO for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to June 2013, the date of the aforementioned VA addendum opinion, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. The Veteran's entire claims folder should then be furnished to the same VA examiner who conducted the December 2012 VA examination and provided the June 2013 addendum to that examination. Should that examiner prove unavailable, the Veteran's entire claims folder should be furnished to another appropriate VA examiner. Following a review of the Veteran's entire claims folder, to include his complete service treatment records, and, in particular, the above-referenced June 3, 1977 and August 26, 1980 service clinical records showing treatment for various low back complaints, the examiner should offer an opinion as to whether the Veteran's current low back pathology at least as likely as not had its origin during, or is in some way the result of, the Veteran's period of active military service, to include a reported fall from an armored personnel carrier and/or exposure to extreme cold. Should it be determined that the Veteran's current low back pathology is not, in fact, directly the result of an incident or incidents of his period of active military service, an additional opinion is requested as to whether any identified low back pathology is at least as likely as not proximately due to, the result of, or aggravated by the Veteran's service-connected left knee disability. In offering this opinion, the attention of the examiner is drawn to the fact that, for adjudication purposes, "aggravation" consists of a permanent increase in severity beyond natural progress of a disability. A complete rationale must be provided for any opinion offered and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. In addition, the examiner must specify in his report that the claims file and Virtual VA, as well as Veterans Benefits Management System (VBMS) records have been reviewed. 3. The AMC/RO should then review the aforementioned report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all service treatment records, as well as all records contained in Virtual VA and VBMS. If the report is deficient in any manner, the AMC/RO must implement corrective procedures. 4. The AMC/RO should then readjudicate the Veteran's claim for service connection for a low back disability (including osteoarthritis of the lumbosacral spine), to include as secondary to the Veteran's service-connected left knee disability. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of the most recent SSOC in June 2013. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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. 2012). _________________________________________________ CHERYL L. MASON 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).