Citation Nr: 1722907 Decision Date: 06/20/17 Archive Date: 06/29/17 DOCKET NO. 12-22 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a lower back disorder. 2. Entitlement to service connection for a bilateral leg disorder, claimed as secondary to a lower back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his Wife ATTORNEY FOR THE BOARD P. Saindon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) from January 2008 and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In July 2016, the Veteran and his wife testified before the undersigned Veterans Law Judge at a travel Board hearing in Albuquerque, New Mexico. A transcript of the proceeding is of record. The Board remanded this matter in November 2016 for further development. It has now returned for adjudication. 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 Agency of Original Jurisdiction. VA will notify the appellant if further action is required. REMAND The Board previously remanded this case in order to afford the Veteran an examination and obtain an opinion on whether the Veteran's back and knees were related to his active service. The Veteran was examined in December 2016, and the examiner opined that the Veteran's back disorder (arthritis and intervertebral disc syndrome) was not due to service. The examiner explained that the back disabilities were more likely attributable to other incidents including a pre-service motor vehicle accident, a post-service motorcycle accident, or the Veteran's post-service employment. The examiner further opined that the Veteran's knees were not secondarily service connected because his back was not primarily service connected. The Veteran, through his representative, argued that this opinion was inadequate. The Board agrees. In particular, it is not possible to discern from the examiner's opinion the probability that the Veteran's back condition originated before service, during service, within one year of service, or sometime after that period. The distinction is important as the onset of the disability affects how the Veteran's claim is considered. Accordingly, a remand is required to obtain a further opinion. Further, as the examiner's opinion of the Veteran's knees was based upon the opinion for the Veteran's lower back, it too must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). 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. Request an addendum opinion from the prior VA examiner or from another qualified medical professional. Further examination is not required, but may be obtained if it would be helpful in rendering an opinion. The Veteran's claims folder must be made available to the examiner, including a copy of this remand. After a complete review of the record, the examiner should opine on the following: (a) Is there clear and convincing evidence (i.e. evidence that produces a reasonable certainty of the truth of the fact in controversy) that the Veteran's back disabilities existed prior to service? Identify the evidence that you rely upon. (b) If the answer to (a) is in the affirmative, is there evidence of increased symptomatology during the Veteran's active service? Identify the evidence that you rely upon. (c) If the answers to (a) and (b) are in the affirmative, is there clear and convincing evidence that the Veteran's back disabilities were not aggravated (i.e. worsened beyond their normal progression) during service? Identify the evidence that you rely upon. (d) If the answer to (a) is negative, is it as likely as not that the Veteran's back disabilities had their onset in service, within one year of service discharge, or otherwise etiologically related to service? A rationale for all requested opinions shall be provided. Reference to findings from identified studies is preferred over reference to medical literature in the abstract. If the examiner relies on his or her medical experience as a rationale, it is appropriate to identify specifics such as an estimate of the number of patients the examiner has seen with similar conditions, the time the examiner has been practicing in the field, or any relevant specialized education or training experiences that go beyond the examiner's degree or accreditation. If the examiner determines that an opinion cannot be rendered without result to mere speculation then it should be clear in the examiner's remarks whether it cannot be determined from current medical authority or if an opinion could be rendered if additional facts were known. If additional facts are needed, the examiner shall state what facts, if known, would impact his or her ability to render an opinion and how. Simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why. 3. After completion of the above, readjudicate the Veteran's claims. If any claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and allow an appropriate period of time to respond. Then return the claim to the Board for further adjudication. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL A. HERMAN 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).