Citation Nr: 1325944 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-26 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected disabilities. ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1996 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Subsequent to the August 2011 statement of the case, additional evidence has been associated with the claims folder, to include VA treatment records and VA examination reports. The VA examination reports are not pertinent to the issue on appeal as the Veteran's low back disability was not noted during the examinations. The VA treatment records show complaints of chronic low back pain; however, this is duplicative and cumulative of the VA treatment records associated with the claims file and considered by the RO. Therefore, a waiver of review by the agency of original jurisdiction is not required. 38 C.F.R. § 20.1304(c) (2012). 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 The Veteran has contended that his low back disability was caused or aggravated by his service-connected knee disabilities. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability, which is proximately due to, the result of, or chronically aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310(a). With respect to aggravation, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.303(b). The Veteran was provided a VA examination in March 2011. The examiner opined that it was less likely than not that the osteoarthritis of the lumbar spine was due to right knee patellofemoral pain as they were two different issues and there was no medical evidence linking one another. The Board finds that the VA examiner's opinion is inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner did not address whether the Veteran's low back disability was aggravated by a service-connected disability and did not discuss the Veteran's service-connected left knee disability. Furthermore, in contrast to the VA examiner's opinion, in a statement received in October 2011, the Veteran's private physician, Dr. S.W., indicated that: "It is certainly within reason that a person with ongoing and persistent bilateral knee pain and/or injuries would likely have to alter body mechanics while lifting. Therefore it is reasonable to assume that a change in lifting mechanics would place an increased stress on the lumbar spine that could very likely result in low back pain or injury." The Board notes that Dr. S.W.'s language is equivocal and speculative in nature. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative). Nevertheless, Dr. S.W.'s opinion suggests a possible relationship between knee pain and the development of low back pain or injury, which was not addressed by the VA examiner. In light of the above, the Board finds that the Veteran must be afforded a new VA examination to address the nature and etiology of his low back disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the nature and etiology of his low back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review the claims file. Provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any low back disability was caused or aggravated by a service-connected disability. Address the Veteran's statements that he overcompensates for his knee pain and Dr. S.W.'s October 2011 opinion. Provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any low back disability had its onset in active service or is otherwise causally or etiologically related to the Veteran's active service. Address the Veteran's statements that he experienced low back pain during active service. Aggravation is defined for legal purposes as a permanent worsening of the underlying condition beyond the natural progress of the disorder, versus a temporary flare-up of symptoms. If the examiner determines that the low back disability was aggravated by a service-connected disability, the examiner should identify the level of disability caused by the service-connected disability, to the extent possible. A complete rationale should be provided for each opinion expressed. 2. When the development requested has been completed, readjudicate the issue on appeal. If the benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ U.R. POWELL 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) (2012).