Citation Nr: 1808248 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-28 141 ) 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 secondary to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran had active duty for training from January 1967 to June 1967 and active duty from May 1968 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously remanded by the Board in March 2016. The case has been returned to the Board for review. In March 2016, the Board remanded the claims of entitlement to service connection for a right ankle condition and entitlement to service connection for a bilateral knee condition. A December 2016 rating decision granted entitlement to service connection for right ankle degenerative joint disease, entitlement to service connection for left knee osteoarthritis, entitlement to service connection for right knee degenerative joint disease and entitlement to service connection for limitation of extension of the right knee. As this represents a total grant of the benefits sought on appeal with respect to these issues, they are no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). In Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000), the Federal Circuit held that VA has an obligation to explore all legal theories, including those unknown to the Veteran, by which the Veteran can obtain the benefit sought. Accordingly, the Veteran's appeal as to service connection for a low back disability has been expanded to include entitlement to service connection under the theory of secondary service connection, and has been characterized as stated on the title page. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). In September 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a) (2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that further development is necessary before a decision on the merits may be made relating to the issue on appeal. In its March 2016 remand, the Board directed the AOJ to provide the Veteran a VA examination to determine the nature and etiology of any diagnosed low back disability. In addition, the Board directed the VA examiner to determine whether the Veteran's low back disability is proximately due to or aggravated by the Veteran's service-connected right ankle disability. The Veteran was provided a VA back examination in April 2016. The VA examiner noted that the Veteran has a diagnosis of degenerative joint disease of the lumbar spine and degenerative disc disease of the lumbar spine. The VA examiner opined that the Veteran's low back disabilities were less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the examiner stated there is no evidence of record of a back condition/diagnosis in service; therefore nexus of causality is moot. The VA examiner further stated that the Veteran's low back disabilities were less likely than not proximately due to or the result of his right ankle disability. As rationale, the VA examiner stated that the medical literature does not support that degenerative joint disease and degenerative disc disease are caused by or the result of a right ankle disability. The Board finds the April 2016 VA examination to be inadequate for decision making purposes because it does not reflect consideration of the Veteran's competent and credible statements that his current low back disability is related to favoring his left leg due to his service-connected right ankle disability. In addition, the examiner did not provide an opinion as to whether it is at least as likely as not that the Veteran's current low back disability is aggravated by his service-connected right ankle disability. In that regard, the Board notes that an opinion to the effect that one disability "is not caused by or a result of" another disability does not answer the question of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Because the April 2016 examination is inadequate and does not comply with the March 2016 Board remand, the issue must be remanded for a further VA opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). The Board further notes that the Veteran is service-connected for bilateral knee disabilities, on remand the VA examiner must opine as to whether the Veteran's current low back disability is secondary to his service-connected bilateral knee disabilities. 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. Forward the record and a copy of this remand to the examiner who conducted the April 2016 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: a) Whether it is at least as likely as not (50 percent or greater probability) that any low back disability, to include, but not limited to, degenerative joint disease and degenerative disc disease, is related to the Veteran's active service. b) If not, whether it is at least as likely as not (50 percent or greater probability) that any low back disability, to include, but not limited to, degenerative joint disease and degenerative disc disease, is proximately due to or the result of the Veteran's service-connected disabilities, specifically to include his service-connected right ankle disability and service-connected bilateral knee disabilities. c) If not, whether it is at least as likely as not (50 percent or greater probability) that any low back disability, to include, but not limited to, degenerative joint disease and degenerative disc disease, is chronically aggravated by the Veteran's service-connected disabilities, specifically to include his service-connected right ankle disability and service-connected bilateral knee disabilities. "Aggravation" is defined as a worsening beyond the natural progression of the disease. The examiner should indicate that the record was reviewed. A complete rationale should be provided for all opinions given. The VA examiner should address the Veteran's contention that his changed gait, due to his service-connected right ankle disability and service-connected bilateral knee disabilities, has caused his current low back disability. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether service connection for a low back disability may be granted, to include as secondary to service-connected disability. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned 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 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 (2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).