Citation Nr: 1338982 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 08-30 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for focal L5-S1 disc disease with lumbosacral facet arthropathy (claimed as back condition), to include as secondary to service-connected residuals, fracture to right distal tibia and fibula with severe loss of motion, right ankle. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1976 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which, inter alia, denied service connection for focal L5-S1 disc disease with lumbosacral facet arthropathy (claimed as back condition). A timely Notice of Disagreement was received by VA in July 2007. The Veteran and his spouse testified at a March 2011 Travel Board hearing held at the Houston RO. When this case was most recently before the Board in July 2011, it was remanded for additional evidentiary development; it has since been returned to the Board for further appellate action. The Board noted in the July 2011 remand that the issue of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to residuals, fracture to right distal tibia and fibula with severe loss of motion, right ankle, had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board noted that it did not have jurisdiction over it, and it was referred to the AOJ for appropriate action. Review of the claims file does not indicate that action has been taken in regards to this issue; therefore, it is again referred to the AOJ for appropriate action. 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 In this case, the Veteran asserts entitlement to service connection for focal L5-S1 disc disease with lumbosacral facet arthropathy (claimed as back condition), to include as secondary to service-connected residuals, fracture to right distal tibia and fibula with severe loss of motion, right ankle. In support of his claim, he argues that as a result of his service-connected right tibia and fibula fracture and loss of right ankle motion, he has been required to walk with an altered gait for many years. He theorizes that, as a result of this altered gait, he has incurred a low back disorder. In response to the Board's July 2011 remand, the Veteran was afforded a VA examination in September 2011 in which the VA examiner diagnosed moderate spondylosis lower part of the lumbar spine. The examiner opined that the lower back condition was not secondary to the right distal tibia and fibula fracture with loss of motion of the ankle. The examiner stated that the Veteran had congenital stenosis of the lumbar spine and degenerative changes at L5-S1; these were not consistent with or related to fractures in the lower extremities. The examiner stated that there was some possible relationship between altered gait and mechanical back pain; however, there was no medical evidence to relate an altered gait due to the lower extremity causing degenerative changes in the lumbar spine. However, the examiner did not offer an opinion as to whether the low back disabilities were chronically worsened, or aggravated, by the Veteran's service-connected residuals, fracture to right distal tibia and fibula with severe loss of motion, right ankle. Moreover, the rationale provided for the opinion was conclusory, reiterating that the disabilities were not related to fractures in the lower extremities. Finally, the examiner did not offer an opinion as to whether the low back disabilities were etiologically related to any other injury or illness that was incurred during his active duty service. Under the circumstances, remand is required to obtain an addendum medical opinion. Accordingly, the case is REMANDED for the following action: 1. The claims folder should be provided to the VA examiner who conducted the September 2011 VA examination. The examiner should be requested to review the claims folder and provide an addendum opinion in which he or she sets forth a complete rationale for all opinions expressed and conclusions reached in regards to the question of whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran's low back disorder is caused by, proximately due to, or aggravated by his service-connected residuals from the fracture to his right distal tibia and fibula with severe loss of motion of the right ankle, to include any altered gait that has resulted from the service-connected right leg disability. The term "aggravation" means a permanent worsening beyond the natural progression of the disability. The VA examiner should also offer an opinion as to whether it is at least as likely as not that the Veteran's low back disorder is etiologically related to any other injury or illness that was incurred during his active duty service. All findings, conclusions, and supporting rationale should be expressed in a typewritten report. 2. After completion of the above development, the Veteran's claim of entitlement to service connection for focal L5-S1 disc disease with lumbosacral facet arthropathy (claimed as back condition), to include as secondary to service-connected residuals, fracture to right distal tibia and fibula with severe loss of motion, right ankle, should be readjudicated. In readjudicating the Veteran's claim, the RO must consider and address both direct and secondary service connection theories. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. 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). _________________________________________________ MICHAEL A. PAPPAS 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).