Citation Nr: 1337903 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-24 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a chronic lumbosacral strain (claimed as a low back condition), to include as secondary to a service-connected right knee disability. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1981 to November 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. By that rating action, the RO, in part, denied service connection for chronic lumbosacral strain. In addition to the issue listed above, in February 2013, the Board remanded the issue of service connection for a left knee disability. While on remand, an August 2013 rating decision granted service connection for this disability. When an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must then be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection. In other words, the grant of service connection during the pendency of an appeal has extinguished the issue before the Board; service connection for a left knee disability is no longer in appellate status. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the record, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND A remand of the Veteran's claim is warranted. Although the Board regrets the delay associated with this remand, further development of the record is required before the Board may render a decision. Due process requires that VA notify the Veteran prior to the adjudication of the claim of any inability to obtain evidence sought, including a VA examination with medical opinion. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007); Daves v. Nicholson, 21 Vet. App. 46 (2007); Green v. Derwinski, 1 Vet. App. 121 (1991); Bowling v. Principi, 15 Vet. App. 1 (2001). Pursuant to the Board's February 2013 Remand, the Veteran received a VA examination of his low back in March 2013. The examiner was asked to opine whether the Veteran's low back disability was caused or aggravated by his service-connected right knee condition. In September 2013, the Veteran's representative asserted, and the Board agrees, that this examination report is inadequate. The examiner diagnosed the Veteran with mechanical low back syndrome, and the examiner stated that there was insufficient evidence to support "the Veteran's assertion that the symptoms are quantitatively greater based on the progression of the musculo-skeletal disease process." The examiner further stated that "no causality has been proven to document any change in the underlying disease process." The examiner noted that mechanical low back syndrome is episodic and "should not" result in any permanent disability based solely on musculoskeletal factors because there are no objective structural changes. Upon review of this opinion, the Board finds it to be unclear whether or not the examiner diagnosed the Veteran with a disability; the examiner both diagnosed the Veteran with mechanical low back syndrome and opined that the Veteran had no low back disability. Furthermore, the Board notes that since the time of this examination, the Veteran has been service-connected for a left knee disability. Accordingly, the Veteran should also be afforded with an additional examination by a new examiner to address the etiology of his low back disability. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA orthopedic examination with a new examiner of appropriate expertise to determine the nature and etiology of the Veteran's low back disability. The examiner must review the claims file and must note that review in the report. After performing a physical examination of the Veteran and any necessary diagnostic testing (including new radiological testing, if warranted) the examiner should provide answers to the following questions, and to provide a thorough rationale: a) Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's low back disability had an onset in service or is otherwise related to service, to include any complaints noted in the Veteran's service treatment records? b) Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's low back disability was caused by any of his service-connected disabilities, to include his service-connected right knee or left knee disability? c) Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's low back disability was aggravated (that is, permanently increased in severity beyond the natural progress of the disorder) by any of the Veteran's service-connected disabilities, to include his service-connected right knee or left knee disability? A detailed rationale for all opinions expressed should be provided; that is, each opinion should clearly indicate how the examiner arrived at the stated conclusion. 2. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and, if not, implement corrective procedures. 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case, allow an appropriate opportunity to respond, and the case should thereafter be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter that 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 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013). _________________________________________________ Michael J. Skaltsounis Acting 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) (2013).