Citation Nr: 1340708 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 09-33 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected left ankle and right knee disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active service from September 1960 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for a lumbar spine disability. The Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge in July 2013. A transcript of that hearing is of record. A May 2009 rating decision denied service connection for depression, including secondary to service-connected disability. The Veteran filed a notice of disagreement in August 2009, and a statement of the case was mailed to him on August 30, 2012. A substantive appeal is not of record. In an October 2012 Report of General Information (VA Form 21-0820), it was noted that the Veteran stated in a phone call that he had sent in a Form 9 to continue the appeal. No Form 9 was found in the system. It was noted that his record was to be reviewed for the Form 9 and if not found another was to be sent to him. However, a timely VA Form 9 is not in the Veteran's file. Therefore, that issue is not before the Board and will not be addressed by the Board. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND On VA examination in March 2008, the examiner concluded that it was less likely that the Veteran's current lumbar spine disability was due to his service-connected ankle disability. The examiner opined rather that the back disability was due to aging. On VA examination in October 2012, and in a January 2013 addendum statement, another examiner also concluded that it was less likely that the Veteran's current lumbar spine disability was due to his service-connected ankle disability, including a reported fall due to an unstable left ankle. However, neither examiner considered the Veteran's right knee disability, nor did they comment on whether the Veteran's service-connected left ankle or right knee disability aggravated the lumbar spine disability. Consequently, the Board finds that the medical evidence is not sufficient upon which to decide the claim and another VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). The Veteran is advised that failure to report for a VA examination, without good cause, may have adverse consequences on his claim. 38 C.F.R. § 3.655 (2013). Upon remand, ongoing VA medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any VA medical reports not already of record from October 2012 to the present and associate them with the claims file. 2. After associating all outstanding records with the claims folder, schedule the Veteran for a VA joints examination to determine the nature and etiology of the claimed lumbar spine disability. The examiner must review the claims file and should note that review in the report. The examiner should review the Veteran's service medical records, lay statements, and personal hearing testimony. After a thorough review of the Veteran's records and a full clinical evaluation, the examiner should answer the following questions and identify the basis upon which the opinions are based: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disability is proximately due to or the result of the service-connected left ankle disability or right knee disability, to include as due to a fall caused by those disabilities. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disability is aggravated (permanently increased in severity beyond the natural progress of the disorder) by the service-connected left ankle disability or right knee disability, to include as due to a fall due to those disabilities. 3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 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 Supp. 2013). _________________________________________________ Harvey P. Roberts 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).