Citation Nr: 1817293 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 11-31 012 ) 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 as secondary to service-connected right anterior tibial fasciotomy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel INTRODUCTION The Veteran had active service from January 1982 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case was remanded in August 2016 and September 2017 for evidentiary development. In addition to the matters noted above, the Veteran has appealed the assigned disability rating for his right anterior tibial fasciotomy, and the denial of entitlement to service connection for bilateral hearing loss. The Veteran has also filed a motion for reconsideration for the denial of entitlement to service connection for varicose veins. The electronic record indicates that the Agency of Original Jurisdiction (AOJ) is taking action on these issues. Although the matters are within the Board's jurisdiction, they have not been certified for appellate review, and the Board will not undertake review of the matters at this time. If the matters are not resolved in the Veteran's favor, the RO will certify the matters to the Board, which will undertake appellate review of the RO's action. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Veterans, as a matter of law, are entitled to substantial compliance with Board instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, it is noted that when an opinion is requested by VA, the RO has a concomitant duty to ensure that the opinion actually offered in concert with the Board's remand instructions is adequate to resolve the issue on appeal. As that did not occur in this case, an additional addendum opinion is necessary. The November 2017 addendum opinion is inadequate to resolve the appeal. Specifically, the examiner did not address the Veteran's diagnosed osteopenia and mild degenerative changes in its assessment of the onset of the Veteran's low back disability or whether the Veteran's service-connected right anterior tibial fasciotomy is aggravating the Veteran's low back disability. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). An additional addendum opinion is required to fully and fairly evaluate his claim. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the November 2017 VA examiner and request she re-review the claims file and respond to the inquiries below. If the examiner is not available, arrange for another appropriate VA examiner to provide an addendum medical opinion to assist in determining the relationship between the Veteran's diagnosed low back disability and his service-connected right anterior tibial fasciotomy. All appropriate tests, studies and consultations should be accomplished, including a new medical examination if necessary, and all clinical findings should be reported in detail in the narrative portion of the examination report. A rationale should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: a) Are ANY of the Veteran's current low back diagnoses caused by the service-connected right anterior tibial fasciotomy? b) If the answer to "a" is no (that any current low back diagnosis is not caused by the service-connected right anterior tibial fasciotomy), are any of the Veteran's current low back diagnoses permanently aggravated by the service-connected right anterior tibial fasciotomy. c) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of low back disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must review the record in conjunction with rendering the requested opinions. The VA examiner's attention is drawn to the following: * February 2010 statement that the Veteran's low back disability is caused by putting more weight on his left leg in order to relieve pain in his right leg. See VBMS entry entitled "Statement in Support of Claim," receipt date 2/24/2010, page 1 of 3. * November 2011 VA treatment records indicating x-rays showed osteopenia and mild degenerative changes to the lumbar spine. See VBMS entry entitled "CAPRI," receipt date 9/27/2016, page 80 of 87. * Service connection is in effect for right anterior tibial fasciotomy. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. The examiner should schedule a new examination only if necessary to provide an adequate opinion. 2. Following the review and any additional development deemed necessary, re-adjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim to the Board for adjudication. 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 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). _________________________________________________ A. P. SIMPSON 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).