Citation Nr: 1609013 Decision Date: 03/07/16 Archive Date: 03/15/16 DOCKET NO. 09-33 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for low back spasms, to include as secondary to service-connected right knee disability and post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The Veteran had active service from September 1999 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which in pertinent part denied service connection for low back spasms, a right ankle disorder, and a right heel disorder. An October 2009 rating decision considered each claim as secondary to the Veteran's service-connected right knee disability and again denied each claim. The Veteran testified at a hearing before the Board in July 2013, and a copy of the hearing transcript is of record. In August 2014, the Board remanded the appeal for additional evidentiary development. During the pendency of this appeal, a February 2014 rating decision also granted service connection for right heel disorder and assigned a 0 percent rating effective February 7, 2007, and a 30 percent rating from November 7, 2014. The February 2014 decision also granted service connection for right ankle disorder and assigned a 0 percent rating effective February 7, 2007, and a 10 percent rating from November 7, 2014. As the Veteran has not disagreed with the disability ratings or effective dates assigned, such issues are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection.) The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In this case, it appears clear that substantial compliance with the Board's August 2014 remand instructions was not achieved. Hence, the current Remand is necessary to remedy this failure of compliance. Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran claims that he has current low back spasms that began during service within a couple months of a right knee injury sustained during martial arts training in February 2004. He believes that modifying his walk or gait due to his service-connected right knee disability caused his low back disorder. The Veteran has also described having low back spasms that "mainly occurred with adrenaline while driving" and indicated that problem started in Iraq as a Humvee driver. See, e.g., February 2007 statement. During the pendency of this appeal, the Veteran has been diagnosed with chronic lumbar spine strain. See, e.g., March 2009 VA examination report. In its August 2014 remand, the Board noted that December 2006 x-rays referenced by the March 2009 VA examiner were not associated with the claims file, and instructed the AOJ to attempt to obtain them on remand. The Board also instructed the AOJ to obtain a VA opinion which adequately addressed whether the Veteran's low back disability was caused or aggravated by his service-connected knee and psychiatric disabilities. The record does not indicate that the AOJ attempted to obtain the December 2006 x-rays. Additionally, the VA opinion obtained only indicated that "it is less likely as not that the Veteran sustained a back injury during his time in the military." See November 2014 VA examination report, p. 2. On remand, the AOJ must attempt to obtain any outstanding x-ray reports, and obtain an addendum opinion which addresses whether the Veteran's low back disability is caused or aggravated by his service-connected right knee disability and/or PTSD. Accordingly, the case is REMANDED for the following action: 1. Obtain all x-ray reports dating from December 2006 to the present regarding the lumbar spine. If such records are unavailable, document the claims file to that effect and notify the Veteran accordance with 38 C.F.R. § 3.159(e). 2. After the above has been completed to the extent possible and the records have been associated with the claims file, forward the claims file to the November 2014 VA examiner. Following review of the claims file, the examiner should identify any low back disability diagnosed since February 2007. Next, the examiner should opine as to whether any diagnosed low back disability, including chronic lumbar strain and low back spasm, is at least as likely as not (a 50 percent or greater probability) caused or aggravated (permanently worsened beyond natural progression) by his service-connected right knee and/or psychiatric disabilities. A medical analysis and rationale are to be included with all opinions expressed. 3. After conducting any other 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 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 2014). _________________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014 & Supp. 2015), 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).