Citation Nr: 1619134 Decision Date: 05/11/16 Archive Date: 05/19/16 DOCKET NO. 10-00 283A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Patricia Veresink, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2013, the Board reopened the previously denied issue of entitlement to service connection for a back disability and remanded the issue for further development. The issue was returned to the Board and the Board denied service connection for a low back disability in a June 2014 decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In an April 2015 Joint Motion for Remand (JMR) the parties agreed that the Board's decision should be vacated. In April 2015, the Court vacated the Board's decision, and remanded the issue to the Board for action consistent with the JMR. The Board determined that further development was necessary and remanded the issue in August 2015 and again in November 2015. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board notes the Veteran's representative has asserted in an April 2016 statement that the VA examiner did not provide sufficient rationale and did not address the effect of symptoms such as an altered gait in rendering the opinion on the claim for secondary service connection for a low back disability. The VA examiner in September 2015 stated as a rationale for his negative nexus opinion that the Veteran's knee and hip conditions would not directly cause any degenerative disc disease of the lumbar spine themselves and that his degenerative disc disease (DDD) of the lumbar spine is more likely due to strenuous use over time. For the same reason, the examiner indicated that the Veteran's back pain is not permanently aggravated by his knee and hip conditions. However, the opinion does not adequately address whether an altered gait from the knee and hip conditions caused or worsened the DDD, nor was a sufficient rationale provided concerning the opinion on aggravation. Additionally, an opinion concerning whether radiation treatment for prostate cancer caused or worsened his low back disability. Accordingly, an additional opinion is needed. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain updated VA treatment records dating since January 2016 and associate them with the electronic claims file. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above is completed to the extent possible, send the claims file to a VA neurosurgeon or orthopedic surgeon who performs back surgery. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the specialist is asked to respond to the following questions: a. Is it at least as likely as not (50 percent probability or more) that the Veteran's current low back disability was caused by the Veteran's service-connected hip or knee disabilities, to include any gait disturbance associated with those conditions? Please explain why or why not. b. Is it at least as likely as not that the Veteran's current low back disability was caused by radiation treatment for the Veteran's service-connected prostate cancer? Please explain why or why not. c. If not caused by the service connected disabilities, is it at least as likely as not that the Veteran's current low back disability was permanently worsened beyond the natural progression (versus temporary exacerbation of symptoms) by the Veteran's radiation treatment for prostate cancer, and/or by the service-connected hip or knee disabilities, to include any associated gait disturbance? Please explain why or why not. d. If the examiner finds the Veteran's low back disability has been permanently worsened beyond normal progression by service connected knee, hip, or prostate cancer radiation treatment, the examiner should attempt to quantify the degree of worsening beyond the baseline level of low back disability. 3. After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated. If the benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. 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 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). _________________________________________________ K.A. BANFIELD 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).