Citation Nr: 1338519 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 07-39 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a low back disorder, including as secondary to service-connected bilateral (left and right) knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served in the Army Reserves from 1977 to 2002, including on active duty for training (ACDUTRA) from February to May 1978. He also had active duty (AD) from October 2001 to October 2002 and presumably at other times inactive duty training (INACDUTRA). This appeal to the Board of Veterans' Appeals (Board/BVA) is from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before a local Decision Review Officer (DRO) in May 2010. The Board previously remanded this claim in January 2012 for further development, including for a VA Compensation and Pension examination and medical nexus opinion regarding the etiology of the Veteran's claimed low back disorder and purported relationship with his military service, such as by way of his already service-connected bilateral knee disability. But given that the medical opinion obtained still does not provide the level of information needed to make this important determination, the Board is again remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Although as mentioned a medical nexus opinion already was obtained on prior remand following a May 2012 VA Compensation and Pension examination as concerning the etiology of the Veteran's low back disorder, including especially insofar as whether it is directly attributable to his military service, presumptively attributable, or secondarily by way of his service-connected disability, the Board deems the findings indicated insufficient to make this necessary determination. The VA examiner at first properly considered the Veteran's alleged injuries in service. The examiner then found "inadequate documentation to confirm a degree of chronicity or nexus between these tours of duty and [the Veteran's] present condition." Ideally, for sake of comprehensiveness, the examiner would have considered also the Veteran's competent lay assertions of continuity of symptomatology since service. See 38 C.F.R. § 3.303(b) (2013). See, too, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (availability of continuity of symptomatology as a principle to substantiate service connection encompasses the diseases denoted as "chronic" under 38 C.F.R. § 3.309(a)). Aside from this concern on the issue of direct service connection, as to secondary service connection the VA examiner did not sufficiently address both the possibilities the service-connected bilateral knee disability caused or alternatively is aggravating the low back disorder. Both are viable bases for establishing entitlement to secondary service connection See 38 C.F.R. § 3.310(a) and (b) (2013). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The examiner did attempt to rule out any aggravation, but on the grounds that "a search of the medical literature [had] failed to uncover such a nexus," without ostensible review of the specific circumstances of this case. Hence, supplemental comment is needed. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(4) (2013) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). See also, Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (indicating it is incumbent on VA adjudicators to ensure the adequacy of any VA examination provided); Stefl v. Nicholson, 21 Vet. App. 120, 123-35 (2007). Accordingly, this claim is again REMANDED for the following still additional development and consideration: 1. Request from the VA Central Alabama Health Care System (HCS) all relevant treatment records concerning the Veteran dated since May 2013. Associate all paper records obtained with the claims file or alternatively with his electronic ("Virtual VA") file. 2. As well, request a supplemental or addendum opinion from the May 2012 VA compensation examiner concerning the questions below; or in the alternative, in the event the May 2012 VA examiner is unavailable or unable to provide a supplemental opinion, schedule the Veteran for another appropriate VA compensation examination for the required additional medical comment concerning the etiology of his low back disorder. The claims file, including a complete copy of this remand, must be made available for review of his pertinent medical history. In particular, the examiner must provide a supplemental opinion regarding the likelihood (very likely, as likely as not, or unlikely) the Veteran's low back disorder is the result of the type of climbing injury he says he sustained in May 1984 or, later, during his service from 2001-2002 as an infantryman having to carry heavy loads on his back in rucksacks, etc., and being transported in tactical vehicles, if taking into consideration his subjectively reported continuity of symptoms and problems referable to his low back since his separation from service. The VA examiner should further comment on the likelihood (very likely, as likely as not, or unlikely) the Veteran's low back disorder alternatively was caused or is being permanently aggravated by his already service-connected bilateral knee disability, specifically taking into consideration his alleged theory that his altered gait and stance because of this service-connected bilateral knee disability caused or, at the very least, has contributed significantly to his present-day low back disability, so in this way is secondary to this service-connected disability. The prior May 2012 VA opinion attempted to address both causation and aggravation, but did not seeming acknowledge the specific contentions the Veteran has made as to why his low back disorder is directly or secondarily related to his military service, the latter by way of his service-connected bilateral knee disability. It is for this reason this additional comment is needed. The examiner must discuss the underlying rationale for all opinions expressed, whether favorable or unfavorable to the claim, if necessary citing to specific evidence in the file supporting conclusions. *If, as is possible, the prior May 2012 VA examiner is unavailable or unable to provide this necessary additional comment, then it is left to the replacement designees' discretion whether the Veteran needs to be actually reexamined to make these necessary determinations. 3. Ensure this additional opinion provides the specific additional information that has been requested. If not, take corrective action to avoid yet another remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). See also 38 C.F.R. § 4.2. 4. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative another Supplemental Statement of the Case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is again remanding. 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ KEITH W. ALLEN 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).