Citation Nr: 1338101 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-09 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a back condition, to include arthritis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Chakraborty, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1984 to December 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claim for service connection for a back condition, to include arthritis. In January 2012 and June 2012, the Board remanded this matter for further development. The Veteran provided testimony at a videoconference hearing before the undersigned Veterans Law Judge in January 2011. A transcript of this hearing has been associated with the Veteran's claims folder. In January 2013, the Veteran submitted a claim for an increased rating for his service connected right knee disability along with a claim for a temporary total evaluation due to surgical treatment for this disability. This matter is currently being addressed by the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. The Board had remanded the Veteran's claim in January 2012 to obtain a VA examination of the back. The examiner was asked to opine whether there was an etiological relationship between the Veteran's back condition and either his military service or his service-connected disabilities, to include his service connected right knee disability. The Veteran received an examination of his back in February 2012. The examiner opined that the Veteran's back condition was not related to service and was more likely related to age, but did not provide a rationale as to this opinion. While the examiner stated that the Veteran's back condition was not related to his knee, he did not provide an opinion as to whether the Veteran's service-connected right knee disability aggravated the Veteran's back condition. In its June 2012 remand, the Board specifically instructed the RO to obtain a medical opinion from the examiner who conducted the February 2012 examination addressing whether the Veteran's back condition was at least as likely as not causally or etiologically related to his active service, and if it was not, to provide an opinion as to whether the back condition was causally or etiologically related to, or aggravated by, the Veteran's service-connected disabilities, including his right knee disability. A rationale for all provided opinions was requested. In the July 2012 medical opinion, the examiner stated that there was no change in his opinion from February 2012, and that no new examination was needed. He noted that the Veteran had a limp at times with his right knee. He reiterated that the Veteran's arthritis in his back was due to natural age progression, and not to service or his right knee condition. The examiner did not provide a rationale for these conclusions, nor did he address specifically the causation and aggravation questions. A medical opinion addressing said questions is required. Accordingly, the Board finds that another opinion must be obtained on remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a new examination, to be conducted by an examiner other than the individual who conducted the February 2012 examination and provided the July 2012 medical opinion. The claims file and a copy of this Remand must be provided to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the file was reviewed. All indicated studies should be performed and all findings should be reported in detail. The examiner must offer an opinion as to the following: a. Whether it is at least as likely as not (i.e. at least a 50 percent probability) that the Veteran's back condition is causally or etiologically related to service. b. If the Veteran's back condition is not related to service, provide an opinion as to whether it is at least as likely as not that the back condition is: i. Causally or etiologically related to the Veteran's service-connected disabilities, to include his right knee disability; or ii. Aggravated by the Veteran's service-connected disabilities, to include his right knee disability. If the Veteran's back condition is found to be aggravated by his service-connected disabilities, including his right knee disability, the examiner should, to the extent possible, describe the baseline level of the Veteran's back condition prior to such aggravation by the service connected disability. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 2. 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, the RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 and allow an appropriate opportunity to respond. Thereafter, the claim should be returned to the Board. The Veteran 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). _____________________________________________ DAVID L. WIGHT 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).