Citation Nr: 1720102 Decision Date: 06/06/17 Archive Date: 06/21/17 DOCKET NO. 12-23 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a back condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Samuelson, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 1981 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2016. A transcript of those proceedings is of record. In February 2016 and September 2016 the Board remanded the Veteran's claim for further development. The Veteran filed claims for entitlement to increased ratings for left knee strain, right knee strain, and bilateral pes planus in March 2017. The Veteran filed a claim for entitlement to service connection for a left hand disability in April 2017. These issues 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) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND At the Veteran's May 2011 VA examination, he contends that while working as a radio operator in service he had to carry equipment from place to place which resulted in low back pain. In the Veteran's August 2012 VA Form 9, he contends that he injured his low back while playing football for his company's team while on active duty. At the January 2016 Board hearing, the Veteran testified that his condition was related to his infantry duties which included marching, repelling, and carrying weight. He testified that his back always hurt during service and has continued to hurt since separation from service. He also testified that his back disability is secondary to his knee disabilities as his knee disabilities have impacted the way he walks. The service treatment records show complaints of back pain during service and a diagnosis of muscular spasm in September 1981 and muscle strain in July 1982, May 1983, and February 1984. The May 2011 and October 2011 VA examinations show a diagnosis of lumbar strain. At the January 2016 Board hearing, the Veteran testified that he was diagnosed by the VA with degenerative disc disease. An April 2011 VA treatment record shows an MRI impression as multilevel degenerative disc disease with mild spinal canal and foraminal stenosis. However, the VA treatment records show the MRI was taken that day for a lump on the base of his neck, not his back, and subsequent x-rays in May 2011 and September 2013 were normal. The November 2011 and May 2016, October 2016, and January 2017 VA medical opinions determined the Veteran's back condition was less likely as not due to his military service. However, the opinions do not address whether the Veteran's back condition is related to his service-connected right or left knee condition. The Board notes that service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). As the Veteran was diagnosed with lumbar strain during the appeal period and he contends that this condition is secondary to his service-connected right and left knee disabilities, a new VA examination is warranted. The examination should diagnose all back conditions and opine whether any condition is related to service or the Veteran's service-connected right knee, left knee, and/or pes planus conditions. The examiner must consider the Veteran's statement that he had continuous back symptomatology since service. The claims file contains VA treatment records through March 2016. The AOJ should obtain VA treatment records since March 2016 and any additional, pertinent VA or private treatment records and associate them with the claims file. The AOJ should also ask the Veteran to submit any additional, pertinent lay statements relating to his claim. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and request that he identify any and all outstanding VA and private treatment records related to his back condition. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with claims file. This should include VA treatment records since March 2016. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back symptomatology, to include any family, friends, associates or treatment providers. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After associating with the file any pertinent, outstanding records, schedule the Veteran for an appropriate VA examination to address his claim for service connection for a back condition, to include as secondary to his service-connected right knee condition, left knee condition, and bilateral pes planus. The claims file must be made available to and be reviewed by the examiner and all necessary tests should be conducted. The examiner must: a. Diagnose all back conditions. b. Opine whether it is at least as likely as not that any back condition is related to or had its onset during service. c. Opine whether it is at least as likely as not that the Veteran's back condition was caused or aggravated (chronically worsened) by his service-connected right and/or left knee conditions. d. Opine whether it is at least as likely as not that the Veteran's back condition was caused or aggravated (chronically worsened) by his service-connected bilateral pes planus. A thorough rationale, to include reference to relevant evidence of record as appropriate, should be provided for all opinions expressed. The examiner should acknowledge the Veteran's diagnosis of muscle strain during service, diagnosis of lumbar strain in May 2011 after service, and the Veteran's contentions that he has had continuous back symptomatology since service and his back condition is related to his right and left knee conditions. If the examiner cannot provide an opinion without resorting to speculation, that should be explained. 4. Then, the RO shall readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and allowed an appropriate period of time to respond. The appellant 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). _________________________________________________ STEVEN D. REISS 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) (2016).