Citation Nr: 1601726 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 07-02 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a back disability, to include as secondary to service-connected left foot disabilities. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD D. Vazquez Diaz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1985 to June 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was conducted at the RO in July 2008. This case was previously before the Board and was remanded in May 2010 and January 2012. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran is service connected for multiple disabilities of the left foot. Specifically, he is service-connected for: postoperative residuals of a left first toe bunionectomy; second toe fusion left foot residuals of bunionectomy associated with post-operative residuals of left first toe bunionectomy; and diminished sensation over dorsum of left first and second toes associated with second toe fusion left foot residuals of bunionectomy. In the January 2012 remand, the Board directed the VA examiner to offer an opinion on whether there was aggravation of the low back disability by any of the service-connected left foot disabilities. The May 2014 VA examiner opined that the Veteran had no alteration in gait, during the exam, and that he may have had some antalgic gait in the past but that this did not not cause a compression fracture of the vertebrae. The examiner noted that compression fractures are caused by trauma and the Veteran's gait was not in any way severe enough to cause any spinal problems or condition as he was able to finish his military service. The Board finds that the May 2014 examination did not comply with the January 2012 remand instructions as it did not address aggravation. The ordered development was not completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The examiner did not state whether a gait alteration was severe enough to aggravate the Veteran's back condition. In El-Amin v. Shinseki, 26 Vet. App. 136 (2013), the United States Court of Appeals for Veterans Claims vacated a decision of the Board where a VA examiner did not specifically opine as to whether a disability was aggravated by a service-connected disability. Here, because there is no medical opinion addressing this aspect of the Veteran's claim, the Board finds that the current opinion is inadequate for adjudication purposes. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination by an appropriate medical professional. The entire claims file, to include all electronic files, must be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's back disability was either caused or aggravated by his service-connected left foot disabilities. The examiner should address the Veteran's contention that he has developed a gait alteration because of his service-connected left foot disabilities and that such altered gait has either caused or aggravated his low back disability. The term "aggravation" means an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability. The examiner must include a complete rationale for all opinions expressed. 2. Then, after undertaking any additional development deemed necessary, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. 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). _________________________________________________ M. HYLAND 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).