Citation Nr: 1551399 Decision Date: 12/08/15 Archive Date: 12/16/15 DOCKET NO. 10-25 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service connected residuals of an excision of ingrown nails of the great toes. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Tyson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to December 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO). After the Veteran filed a substantive appeal, the appeal reached the Board in December 2012. However, the Board remanded the claim for further development. Specifically, the Board remanded the claim to the RO to schedule the Veteran a VA examination with a neurosurgeon to determine whether the Veteran's back condition was related to service. The Board found the September 2008 VA examination in the claims file inadequate due to its failure to address all applicable theories of service connection. This examination was completed in March 2013. Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2014, the appeal returned to the Board. The Board denied the Veteran entitlement to service connection for a low back disability based in part on the March 2013 VA examination report as well as other probative evidence of record. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). During the pendency of the appeal the parties agreed to a Joint Motion for Remand (JMR), which the Court granted in an August 2015 order on two bases. First, the Court found that the Board failed to address extensive medical evidence from 1998 to 2001, which documented a history of low back pain. Second, the Court found that the opinion provided in the March 2013 VA examination inadequate because it failed to provide an adequate rationale. Since the last statement of the case issued in March 2013, the Veteran has submitted additional relevant medical documentation with appropriate waiver of RO review in the first instance dated September 21, 2015. 38 C.F.R. § 20.800 (2015). As such, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Pursuant to the JMR, the appeal is remanded for a new examination to evaluate whether the Veteran's current low back disability is related to service to include consideration of direct and secondary theories of service connection. Prior to any examination taking place, the Veteran's VA treatment record should be updated. Accordingly, the case is REMANDED for the following action: 1. Obtain updated treatment records from the Cleveland, Ohio VA Medical Center since March 18, 2013. 2. After the record is updated, provide the Veteran's file to a physician to obtain an opinion as to the etiology of the claimed spine condition. (a) Is it at least as likely as not (greater than 50 percent probability) that the current low back disability is related to a back injury in service? The examiner should discuss service treatment records noting back pain in service and at separation, and must discuss the post-service medical history of complaints and treatment for the back, in order to comply with the instructions of the Joint Motion for Remand. (b) Is it at least as likely as not (greater than 50 percent probability) that the current low back disability was caused by or aggravated by service connected residuals of an excision of ingrown toenails of the great toes? In answering this question, the examiner should discuss the contention that the Veteran's gait has been altered due to the residuals of the excision of ingrown toenails. The examiner should review the claims file in its entirety prior to making his/her opinion and make a notation to this fact in the examination report. 3. After the above development is completed, readjudicate the claim. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and appropriate time to respond. The Veteran 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 2014). _________________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).