Citation Nr: 1815672 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 14-20 600A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a low back condition. 2. Entitlement to service connection for a right foot condition, to include as secondary to a low back condition. 3. Entitlement to service connection for a right knee condition, to include as secondary to a low back condition, and/or as secondary to a right foot condition. 4. Entitlement to service connection for a left knee condition, to include as secondary to a low back condition, and/or as secondary to a right foot condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1970 to November 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the delay, further development is necessary prior to the adjudication of the issues on appeal. The Veteran seeks service connection for a low back condition, right foot condition, right knee condition, and left knee condition. Specifically, the Veteran contends that he has a back, right foot, right knee, and left knee injury as a result of an incident in which he slipped on a ladder while exiting the diesel generator room on the USS Sea Devil SSN-664. Alternately, the Veteran contends that low quarters and tight spaces; constant bending, twisting, and rotating; and the pressure from being submerged in deep water contributed to an early onset of a back condition. Addressing the Veteran's low back condition claim, the evidence of record includes a January 2013 VA examination report in which the examiner opined that the Veteran's herniated lumbar discs that required multiple surgical interventions were not likely related to an episodic event of left sciatica in 1974, as there was no contemporary evidence of residuals, as demonstrated by an unremarkable discharge physical examination. The examiner reasoned that the Veteran had documentation of back symptoms beginning in 1982 (8 years post-service), making it not likely related to service. Unfortunately, the Board finds the January 2013 VA examiner's opinion an inadequate basis upon which to decide the Veteran's claim, as the examiner did not address the Veteran's reports of continuity of symptomatology since service. The Veteran is competent to provide lay evidence concerning the onset and continuity of his symptoms, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran and his wife both testified during the May 2014 Decision Review Officer (DRO) hearing that the Veteran has had back pain since service and that his back pain has gotten progressively worse, ultimately requiring surgery. See May 2014 DRO Transcript. The Veteran also submitted a September 2013 letter in which he stated that he continued to have episodes of lower back pain after discharge from service. Further, the Veteran testified that he has a high tolerance for pain and only went to the doctor after he could not stand it anymore. Id. The Board also notes that the evidence of record contains additional contentions regarding the Veteran's claim for service connection for a low back condition which have not previously been addressed. Specifically, the Veteran contends that he has a back condition related to service as a result of living in low quarters and tight spaces; and constant bending, twisting, and rotating. See February 2018 Informal Hearing Procedure. The Veteran also contends that the pressures from being submerged in deep waters contributed to his subsequent development of a low back condition. A review of the evidence of record, including the Veteran's DD Form 214, confirms that the Veteran served aboard the USS Sea Devil SSN-664 and had a military occupational specialty of marine mechanic. A review of the evidence of record also confirms that the Veteran complained of back pain during service and has a current back disability. In light of the foregoing, the Board finds that a remand for an addendum opinion addressing the Veteran's additional contentions is necessary. Turning to the Veteran's right foot condition, right knee condition, and left knee condition, the Board notes that the Veteran has, at least in part, asserted that those conditions are secondary to a low back condition. Accordingly, those matters are inextricably intertwined with the claim for service connection for a low back condition and must be deferred pending resolution of that claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1993) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. After the above has been completed to the extent possible, return the claims file to the examiner who conducted the January 2013 VA back examination, if available. The claims file, this remand, and electronic records must be reviewed by the examiner. If the original examiner is not available, the claims file should be forwarded to a reviewer of similar or greater qualifications. If a new examination is deemed necessary to respond to the question posed, one should be scheduled. (a) Is it at least as likely as not (50 percent probability or greater) that the diagnosed back disability had its onset during active service, or within one year of the Veteran's separation from active service in November 1974, or is otherwise related to service? The examiner is asked to specifically address the Veteran and his wife's contentions that the Veteran has continued to experience back pain since service which has progressively gotten worse. The examiner is also asked to specifically address the Veteran's contention that low quarters and tight spaces; constant bending, twisting, and rotating; and the pressure from being submerged in deep water contributed to an early onset of a back condition. Please note that the Veteran's DD From 2014 confirms that the Veteran served aboard the USS Sea Devil SSN-664 and had a military occupational specialty of marine mechanic. Please also note that the Veteran's STRs document that the Veteran was treated for back trouble (pinched nerve) after he slipped on a hatch and twisted his back. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record, specifically including the Veteran's reports of continuity of back symptomatology. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Readjudicate the claim on appeal. If the benefits requested on appeal are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ S.C. KREMBS 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).