Citation Nr: 1414215 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 10-18 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a low back disorder, to include as secondary to the service connected left and/or right knee disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active duty from February 1968 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied service connection for a low back condition. In August 2013, the Veteran testified via videoconference, at the RO, before the undersigned Acting Veterans Law Judge. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran essentially contends that his low back disorder is related to his service-connected right and left knee disabilities. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). With regard to the Veteran's claim for secondary service connection, what is missing in this case is competent medical evidence linking the Veteran's current low back disability (which appears to encompass arthritis, degenerative disc disease, and severe stenosis) to his service connected left and/or right knee disabilities. The Board also notes that a review of the hearing transcript from the hearing in August 2013, shows that the Veteran's representative indicated that the Veteran had provided a private medical opinion from a Dr. Philip A. Renau (phonetic spelling noted by transcriber) in a letter dated June 28, 2008, which reportedly stated that the Veteran's severely altered gait and misalignment of both knees caused stress and/or additional pressure to his low back. Later at the hearing, there was clarification that "Dr. Renau" was actually a reference to Dr. Minella, and the Veteran basically indicated that Dr. Minella did not provide an opinion about a relationship between his back and knees. Indeed, review of the records shows private records were submitted for a Dr. Phillip Minella, dated June 25, 2008 and August 27, 2008, however, neither of these letters contain opinions regarding a relationship between the Veteran's back and knees. On a VA examination in January 2009, the examiner noted that the Veteran had significant pathology in his lumbar spine, but opined that the Veteran's lumbar spine condition was less likely as not caused by or a result of his service-connected left knee degenerative joint disease. In an April 2009 VA addendum opinion, the examiner opined that the Veteran's back condition as not caused by or a result of his service-connected right knee condition. On a VA DBQ (disability benefits questionnaire) examination in January 2013, the examiner opined that the Veteran's osteoarthritis of the knees would be unrelated to the development of spinal stenosis. The Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). After reviewing the VA examination reports, the Board concludes that the opinions rendered are incomplete and an additional opinion is warranted. The Board acknowledges that the VA examiners specifically addressed whether the Veteran's low back condition was related to or caused by his left and right knee disabilities, but did not specifically address whether his low back condition was aggravated or worsened by his left and/or right knee disabilities. A claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, supra. Thus, based on the foregoing, the Board concludes that a supplemental medical opinion, on the question of whether the Veteran's low back disability is as likely as not aggravated by his service-connected knee disabilities is needed. Barr v. Nicholson, supra. Accordingly, the case is REMANDED for the following action: 1. Arrange for the VA examiner who provided the January 2013 VA DBQ report and opinion to review the Veteran's claims folder, and specifically note that such review has been accomplished. The examiner should be requested to offer an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent degree of probability) that the Veteran's current low back disability was caused or aggravated by his service-connected right and/or left knee disabilities. The examiner must explain the rationale for any opinions given. If the examiner cannot answer the above question without resorting to mere speculation, the examiner should state why this is so. If the original VA examiner (from 2013) is not available, please forward this request to another qualified examiner in order to comply with the aforementioned request for an opinion. If deemed necessary by the examiner, a physical examination of the Veteran should be conducted 2. Thereafter, the issue on appeal should be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded the appropriate opportunity to respond thereto. 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. 2013). _________________________________________________ Michael J. Skaltsounis Acting 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).