Citation Nr: 1753725 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 10-34 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability, to include as due to knee disabilities. REPRESENTATION Veteran represented by: Adam Neidenberg, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1990 to January 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared and testified before the undersigned Veterans Law Judge (VLJ) in an October 2013 Board hearing. A transcript of this hearing is contained in the record. Although several "inaudible" areas are noted, the majority of the hearing recorded without incident, and with context, the Veteran's testimony is understandable. In March 2015 the Veteran submitted a substantive appeal and requested a Board hearing. Notably, the Veteran has already received a Board hearing on the issues on appeal, including those addressed in the February 2015 supplemental statement of the case. As such, the Veteran was not scheduled for a second Board hearing. This issue was previously before the Board in July 2014. The Board remanded the claim for additional development, including additional VA examinations. In September 2016, the Board, in part, denied the Veteran's claim for entitlement to service connection for a low back disability. In June 2017, a Joint Motion for Partial Remand entered by the Court of Appeals for Veterans' Claims vacated and remanded the September 2016 Board decision to the extent that it denied entitlement to service connection for a low back disability. The Board parenthetically notes that in its September 2016 decision, the Board also remanded the issues of entitlement to service connection for headaches, entitlement to service connection for a left ankle disability, entitlement to a rating in excess of 10 percent for right knee limitation of motion, entitlement to a rating in excess of 10 percent for left knee limitation of motion, entitlement to a rating in excess of 20 percent for left knee instability, including the propriety of the October 2012 reduction, and entitlement to a rating in excess of 20 percent for right knee instability from August 3, 2015. Development for these remanded issues still appears to be ongoing. As a result, these issues will be the result of a separate Board decision once the required development is complete. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that more development is necessary prior to final adjudication of the claim on appeal. Notably, in July 2014 the Board remanded this issue in order to provide the Veteran a new VA examination for a well-supported lumbar spine etiology opinion which thoroughly addressed both theories of direct causation and secondary causation as previous medical opinions received up to that point were deemed "problematic". Per July 2014 Board remand instructions, the Veteran underwent a VA examination in November 2014. The November 2014 examiner opined that the Veteran's lumbar spine disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness as the Veteran was not diagnosed with a chronic lumbar condition in service and there was no objective medical evidence of direct service connection or aggravation. However, as noted by the June 2017 Joint Motion for Partial Remand, this opinion is inadequate as it was non-responsive to the July 2014 remand directives. Notably, the November 2014 VA examiner failed to specifically address whether the Veteran's back disability was caused by or aggravated by a service-connected disability. As a result, the November 2014 examination report does not comply with the Board's July 2014 instructions. The United States Court of Appeals for Veterans Claims has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board finds that the November 2014 VA examiner should amend his examination report in accordance with the Board's July 2014 directives cited herein to determine whether or not the Veteran's back disability was related to service or was caused or aggravated by a service-connected disability. Consequently, a new remand is required to comply with the holding of Stegall. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 2. Return the claims file to the VA examiner that examined the Veteran in November 2014. If that examiner is not available, return the file to another examiner with the appropriate knowledge and expertise. If the new examiner feels that an actual physical examination is necessary, such examination should be scheduled. The examiner should furnish an opinion as to whether: (a) It is at least as likely as not (at least a 50 percent probability) that the Veteran has a current low back disability that had its onset in service. (b) It is at least as likely as not (at least a 50 percent probability) that the Veteran has a current low back disability that is caused or aggravated by a service-connected disability. (c) Is it at least as likely as not (50 percent probability or greater) that the back disability has been permanently aggravated beyond its natural progression by a service-connected disability. Aggravated for VA purposes means the condition is worsened beyond the natural progression. If aggravation is found, the examiner should, to the extent that is possible, provide an opinion as to approximate baseline level of severity of the lumbar spine disability before the onset of aggravation. For purposes of this opinion, the examiner should presume that the Veteran's report of experiencing a back injury during active duty to be credible. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Ensure that the examination report complies with this remand and answers the questions presented herein. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, readjudicate the issue. If any benefit sought on appeal remains denied, the Veteran should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. §§ 5109B, 7112 (West 2012). _________________________________________________ MICHAEL LANE 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) (2017).