Citation Nr: 1404530 Decision Date: 01/31/14 Archive Date: 02/10/14 DOCKET NO. 10-24 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a back disability, to include as secondary to service-connected left knee disability. ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from March 1980 to April 1984, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In connection with his appeal, the Veteran requested and was scheduled for a hearing before a Decision Review Officer. In August 2010, prior to the hearing, the Veteran withdrew his request. In June 2012, the Board reopened the claim seeking service connection for a back disability, to include as secondary to service-connected left knee disability, and remanded the claim for additional development. All development was substantially completed; however, as discussed below, further development is required before the Board can adjudicate the claim. See Stegall v. West, 11 Vet. App. 268 (1998). 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 June 2012, the Board reopened the Veteran's claim for service connection for a back disability, to include as secondary to his service-connected left knee disability and remanded the claim, in part, to allow for the scheduling of a VA examination to determine the nature and etiology of the Veteran's low back disability. A VA examination was conducted in July 2012; however, the examination report is not adequate for rating purposes. Specifically, the examiner cited to a November 2011 treatment record which states that the Veteran has had back pain since a fall in 2007. While that statement is accurate as to what the treatment record states, review of the claims file shows that the Veteran fell in 2005. In addition, the examiner stated that the degenerative disc disease of the lumbar spine is due to the work related accident in 2007 and also to normal progression of the aging process. Review of the claims file shows a diagnosis of degenerative disc disease as early as February 2002; thus, the condition could not be the result of a fall in 2005 or 2007. Based on the foregoing, it does not appear that the examiner thoroughly reviewed the Veteran's claims file prior to providing the etiology opinion. As such, the examination report is inadequate for rating purposes and a remand is necessary to obtain an addendum opinion addressing the nature and etiology of the Veteran's back disability. Accordingly, the case is REMANDED for the following action: 1. Associate all VA records dated from May 2012 to the present with the claims file. 2. Send a copy of this remand, the Veteran's paper claims file, and any relevant medical records contained in Virtual VA to the VA examiner that conducted the July 2012 examination, or to another qualified examiner, and ask the examiner to provide an addendum opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should opine as to the relationship, if any, between the Veteran's back disability and his service-connected left knee disability. To the extent possible, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that a back disability was either (a) proximately caused by or (b) proximately aggravated by the Veteran's service-connected left knee disability. In providing the rationale, the examiner should refer directly to the Veteran's credible and competent reports that his back pain worsened when his left knee gave out at work and caused him to fall on his left side. The examiner should ensure that facts referenced in support of the opinion are accurate. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide the opinion without physically examining the Veteran, an examination must be scheduled. 3. When the development requested has been completed, the claim for entitlement to service connection for a back disability, to include as secondary to service-connected left knee disability, should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).