Citation Nr: 1418752 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 07-10 808 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE 1. Entitlement to service connection for a back disorder, secondary to a service-connected left ankle disability. 2. Entitlement to an initial compensable rating for erectile dysfunction. 3. Entitlement to an initial rating in excess of 10 percent for a scar, residual of circumcision. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from November 1968 to August 1970. This appeal to the Board of Veterans' Appeals (Board) is from August 2008 and January 2013 rating decisions of VA RO in Waco. In September 2011, a Travel Board hearing was held before the undersigned; a transcript of this hearing is of record. After remanding the matter in December 2011, the Board denied the claim in a December 2012 decision. The Veteran's attorney and the Office of General Counsel filed a Joint Motion for Partial Remand (Motion) asking the Court to vacate the portion of the Board's December 2012 decision denying service connection for a back disorder and to remand the claim back to the Board for further development and readjudication in compliance with the Motion. The Court granted this Motion and issued an Order in September 2013. The petition to reopen a claim for service connection for a right knee disorder and a claim for a higher rating for the left ankle disability have been raised by the record in November and December 2013 statements, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Motion found the Board did not ensure compliance with the prior remand of December 2011, which sought opinions on whether the left ankle disability caused or aggravated the claimed low back disorder. The parties of the Motion point out that the February 2012 VA examination opinion covered secondary service connection in terms of causation and neglected to address aggravation. To correct this omission, the matter is remanded for another examination. Although additional private and VA treatment records are located in Virtual VA, which is a paperless electronic processing system, ongoing treatment records for the back disorder should be obtained. Service connection for a circumcision scar and erectile dysfunction was effectuated in a January 2013 rating decision and initial ratings were assigned. In December 2013, the RO received the Veteran's notice of disagreement with these initial ratings but have yet to issue a statement of the case (SOC). This must be accomplished on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of pertinent ongoing treatment records since August 2013 from the Veteran's private physician, Dr. R. B. VA treatment records since November 2010 must also be secured. The Veteran should be advised that he may submit these records on his own and he must be notified of any negative response in pursuit of additional records. 2. Then schedule the Veteran for a VA spine examination to determine the likely etiology of his back disorder. All indicated tests and studies should be performed and all findings should be set forth in detail. A) Based on the examination and the Veteran's medical history provide opinions as to the following: * Is it at least as likely as not (50 percent or greater probability) that the Veteran's current low back disorder was caused by the service-connected left ankle disability? * If not, is it at least as likely as not that the current low back disorder is aggravated (i.e., permanently worsened) by the service-connected left ankle disability? B) In rendering these opinions the examiner must discuss whether the Veteran has an altered gait due to the left ankle disability that either caused or aggravated his back disorder. C) The examiner must explain the rationale behind the opinion and cite to supporting medical evidence, if necessary. 3. Then review the claims file to ensure all required development is completed and take correction action for any deficiency found. 4. Thereafter, readjudicate the claim in light of all of the evidence of record. If the benefit remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 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). _________________________________________________ KELLI A. KORDICH 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).