Citation Nr: 1039099 Decision Date: 10/19/10 Archive Date: 10/22/10 DOCKET NO. 04-02 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for blood clots of the legs and lungs. 2. Entitlement to an increased rating for the Veteran's service- connected low back strain with degenerative joint disease, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant & Spouse ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran had active service from June 1968 to August 1972. This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2003 of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Board remanded the appeal in January 2006 and in February 2009. The Veteran requested a Videoconference hearing before the Board. The requested hearing was conducted by the undersigned Veterans Law Judge in April 2004. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Inasmuch as the Board regrets the additional delay in adjudication of this matter, a remand for further development is necessary before either claim can be properly adjudicated. Increased Rating Claim With regard to the Veteran's claim for an increased rating for his service-connected low back strain with degenerative joint disease, the Board finds that the development directed in the February 2009 remand was not accomplished. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the last remand, the Board discussed the medical complexity of the Veteran's current back disability. Historically, the Veteran injured his back in service while carrying a heavy load of supplies onboard ship. Service treatment records from August 1969 document the Veteran's complaints of back pain. He was found to have a strain and spasm and was treated with heat and rest. X-rays were negative. He was not thereafter treated for back pain in service, and his spine, musculoskeletal system and lower extremities were described as normal by the time of a November 1970 service examination. His spine, musculoskeletal system and lower extremities were also described as normal at the time of the July 1972 discharge examination. In 1987, approximately fifteen years after the Veteran's discharge, he was involved in a severe motor vehicle accident in which he suffered numerous injuries, including a T3-T4 compression fracture. In 1989, he underwent decompression of the T3-T4 fracture. In 2001, a laminectomy of C5-C6 was performed to alleviate stenosis. Since the accident and subsequent surgeries the medical record has documented numerous neurological abnormalities. He is currently confined to a wheelchair. In the remand, the Board noted that there is confusion as to the exact nature of the low back disability for which service connection has been granted. The Board observed that the Veteran has argued that the diagnosis of his service-connected back disability is not accurate, and that he is entitled to an increased evaluation for his service- connected disability based on neurologic manifestations. The Board noted that during the pendency of this appeal, the RO re-characterized the Veteran's service-connected back disability from a mild, low back strain to a low back strain with degenerative joint disease. This recharacterization first appeared in the December 2003 statement of the case, but the change was not explained nor was any rating sheet generated in its regard. In Remand Directive #4 the Board emphatically requested the RO/AMC to specify for the Board the exact nature of the low back disability for which service connection has been granted. This directive was ignored. The Board must once again remand for this information. Further, in the remand the Board noted that VA examination reports of October 2006 and July 2006 were contradictory as to whether the Veteran's neurological symptoms, his lumbar muscle spasm, and his limitation of motion of the lumbar spine were all due to his service-connected disability or to pathology for which service connection is not in effect. The Board sought a medical opinion to reconcile this evidence. Given the medical complexity of this case, the Board directed that this information be obtained from a panel of VA physicians, to include, at minimum, an orthopedist and a neurologist, Board-certified if possible. The Board requested a consensus examination report from these physicians containing answers to specific questions contained in the Remand Directives. On remand, however, the RO/AMC obtained a VA examination report rendered by a family physician. An orthopedist was not consulted. A neurologist was consulted and her findings are incorporated into the examination report but she did not render any opinion as requested. In the Veteran's representative's June 2010 post-remand brief the Veteran protests this non-compliance with the Board's directives, and the Board agrees. In the VA examination report, the examiner explained that, "we are currently unable to offer physician panel C&P exams at our VA." While the Board is not wholly unsympathetic, the Board maintains that at minimum, the medical opinion of an orthopedist, as well as a neurologist, must be obtained as directed in order to properly adjudicate this claim. Further, the physicians must make certain to carefully review the medical record, particularly details of the 1987 accident, prior to rendering any opinion. The October 2009 VA examiner, for example, stated that the Veteran's truck "plunged" 57 feet off a bridge during the 1987 accident. On review of the medical evidence from the 1980s, the Board cannot point to any documentation of the truck plunging from a bridge. A September 1989 medical record documents that the Veteran's semi truck fell 57 feet off the road and an April 1987 record indicates that the truck and trailer crashed into a canyon after the front tire blew out, but the Board cannot confirm the other details cited by the VA examiner. The Board notes that all medical evidence, particularly evidence relating to the 1987 accident, must be carefully reviewed. Service Connection Claim With regard to the Veteran's claim for service connection for blood clots, in the Board's February 2009 remand a VA examination was ordered to determine whether there is any relationship between the Veteran's blood clotting disorder and his service- connected low back disability. The Veteran has contended throughout the course of this appeal that he has developed blood clots in his legs and lungs because of the fact that he is confined to a wheelchair and is forced to remain seated for most of the time. The medical evidence at the time of the Board's February 2009 remand was inconclusive as to whether any relationship existed. Pursuant to the Board's remand directives, a VA examination was conducted in October 2009. The VA examiner conducted laboratory testing and determined that the Veteran has a "congenital protein C and protein S deficiency; these predispose him to increased chance of blood clotting throughout life and are not etiologically due to or aggravated by his SC lumbar disability." While these findings comply with the questions posed by the Board in the February 2009 remand as to the issue of secondary service connection, the identification of the Veteran's disability as a congenital condition necessitates further development for proper adjudication. While the Veteran has not specifically raised any argument for his blood clotting disorder aside from the secondary service connection argument, the Board is obligated to address all possible theories of service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Congenital and developmental defects are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9 (2009). Therefore, such disorders require more than an increase in severity during service in order to warrant a grant of service connection. The evidence must show that the congenital or developmental defect was subject to a superimposed disease or injury during military service that resulted in increased disability. VAOPGCPREC 82- 90 (July 18, 1990), 55 Fed. Reg. 45711 [a reissue of General Counsel opinion 01-85 (March 5, 1985)]. The VA General Counsel explained there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental defect, on the other hand, because of 38 C.F.R. § 3.303(c), is not service connectable in its own right, though service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. VAOPGCPREC 82-90. Here, it is unclear from the October 2009 VA examination report whether the Veteran's congenital protein C and protein S deficiency is a congenital or developmental defect or a congenital or developmental disease. If it is a disease, findings must be made as to whether it was aggravated by his period of active service beyond the natural progression. If it is a defect, it is unclear whether there are any superimposed disease or injury in connection with the congenital defect and if so, whether the superimposed disease or injury is related to the Veteran's period of active service. The Board cannot independently make these findings as it is prohibited from relying on its own unsubstantiated medical judgment in the resolution of claims. See Crowe v. Brown, 7 Vet. App. 238 (1995); Austin v. Brown, 6 Vet. App. 547 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the case is REMANDED for the following action: 1. The RO should specify for the Board the exact nature of the low back disability for which service connection has been granted. 2. Afford the Veteran VA examinations by an orthopedist and a neurologist, Board- certified if possible. With regard to the neurologist, an addendum opinion may be sought from the M.K., the consulting neurologist to the October 2009 VA examination report. If this particular neurologist is unavailable, afford the Veteran a separate VA examination from another neurologist. The claims folder must be made available to the examiners in conjunction with the examination. All indicated diagnostic testing should be conducted, to include EMG, NCV, and MRI studies. If any of these tests are deemed to be unnecessary, a rationale for such findings must be recorded in the report. The report should discuss the results of diagnostic testing and sufficiency of testing conducted. The report should discuss all pertinent documents, including the Veteran's August 1969, November 1970, and July 1972 service treatment and examination records, October 1972, January 1974 and May 1974 VA examination reports, post-service treatment records, including records from February 1987 to the present, to include the report of September 1989 T3-T4 decompression and the report of private 2001 cervical spine surgery, and the reports of VA examinations conducted in 2006 and October 2009. The examination report should also describe the Veteran's current range of motion of the thoracolumbar spine, in degrees, noting range of motion without and with pain, effect of repetitive movement, and whether there is lumbar muscle spasm. The report should state whether there is weakened movement, excess fatigability, or incoordination of movement of the lumbar spine, and whether there is additional loss of motion on flare-ups of pain. Then, the examiners should provide an opinion addressing each of these questions: (a) What is the likelihood that lumbar muscle spasm, if present, and/or current limitation of motion of the lumbar spine are etiologically due to service-connected lumbosacral pathology? Please express the likelihood as "at least as likely as not" (a likelihood of 50 percent or greater), "more than likely," or "unlikely." (b) What is the likelihood (as likely as not, more than likely, unlikely) that the Veteran's current lumbar muscle spasm and limitation of motion of the lumbar spine are etiologically due to pathology for which service connection is not in effect? (c) Provide an opinion as to whether the October 2006 and October 2009 opinions that current neurologic symptoms/disorder(s) of the lower extremities are due to post- service injury rather than service- connected lumbar disability remain accurate. 3. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his blood clotting disorder. All necessary studies and/or tests should be conducted. The Veteran's claims file should be made available to the examiner for review. Following a review of the claims file, the examiner should answer the following questions: (a) Confirm whether the Veteran has a congenital protein C and protein S deficiency. If so, identify any residuals related to this condition. The examiner should specifically determine whether the Veteran's blood clotting disorder for which he seeks service connection is such a residual. (b) If a congenital protein C and protein S deficiency is present, does it constitute a defect or a disease, as defined by VAOPGCPREC 82-90 (generally, a congenital abnormality that is subject to improvement or deterioration is considered a disease)? (c) If the Veteran's congenital protein C and protein S deficiency is considered a defect, then was there any superimposed disease or injury in connection with the congenital defect? If so, is it at least as likely as not that the identified superimposed disease or injury is related to the Veteran's period of active service? (d) If the examiner finds that the Veteran's congenital protein C and protein S deficiency is a disease, then is at least as likely as not (at least a 50 percent probability) that it was aggravated by his period of active service? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. A complete rationale for any opinion expressed should be included in the examination report. 4. After all of the above actions have been completed, readjudicate the Veteran's claims. If the claims remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. The appellant 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.A. §§ 5109B, 7112 (West 2002 & Supp. 2009). _________________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2009), 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) (2009).