Citation Nr: 0004197 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 94-27 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for back strain, to include as secondary to service-connected shell fragment wounds of the left and right lower legs. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD A. C. Mackenzie, Associate Counsel INTRODUCTION The veteran served on active duty from June 1969 to January 1975. This matter comes before the Board of Veterans' Affairs (BVA or Board) on appeal from an October 1992 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In a July 1997 decision, the Board affirmed the RO's decision which denied the veteran's claim of entitlement to service connection for back strain, to include as secondary to service-connected shell fragment wounds of the left and right lower legs, and he subsequently appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated in July 1999, the Court vacated the Board's denial of service connection for back strain and remanded this case for further adjudication. The Board also observes that the Court's July 1999 Memorandum Decision indicates that the veteran had abandoned his appeal of the Board's denial of entitlement to secondary service connection for headaches. REMAND A preliminary review of the record discloses that in the July 1999 Memorandum Decision, the Court noted that, in denying the veteran's claim of entitlement to service connection for back strain, to include as secondary to service-connected shell fragment wounds of the left and right lower legs, the Board had failed to adequately address a March 1996 opinion by a VA examiner to the effect that a period of abnormal gait at the time of shell fragment wounds might have led to a worsening of back symptoms. The Court indicated that it would be appropriate for the Board to arrange for another medical examination and opinion regarding the veteran's claim. Therefore, in order to give the appellant every consideration with respect to the present appeal, and to comply with the Court's decision in this case, it is the Board's opinion that further development of the case is necessary. Accordingly, this case is REMANDED for the following action: 1. The RO should afford the veteran a VA examination with an appropriate physician to determine the etiology of his current back disorder. All tests and studies deemed necessary should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide a diagnosis for all back disorders that are present. The examiner is also requested to offer an opinion as to whether it is at least as likely as not that any current back disorder, if present, is causally or etiologically related to the veteran's service-connected shell fragment wounds of the left and right lower legs. If not causally or etiologically related, the examiner should comment on the statement in the March 1996 VA examination report that "it is possible that a period of abnormal gait at the time of shell fragment wounds may have led to a worsening of symptoms." In this regard, the examiner should specify whether it is at least as likely as not that the service-connected shell fragment wounds of the left and right lower legs chronically worsened or permanently increased the severity of any diagnosed back disorder, and if so, the degree of increase in severity due to the service- connected shell fragment wounds of the left and right lower legs. A complete rationale should be given for all opinions and conclusions expressed. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (1999), copies of all pertinent medical records in the veteran's claims file or, in the alternative, the claims file, must be made available to the examiner for review. 2. After completion of the above development, the RO should again adjudicate the veteran's claim of entitlement to secondary service connection for back strain, to include consideration of the Courts guidance in Allen v. Brown, 7 Vet App 439 (1995) as to whether the service-connected shell fragment wounds of the left and right lower legs aggravated any nonservice connected back disorder. If the determination remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an appropriate opportunity to respond. The purpose of this REMAND is to obtain additional development and to comply with the Courts decision in this case, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. No action is required of the appellant until he is notified. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).