Citation Nr: 0811101 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-01 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased (compensable) rating for service-connected compression fracture of L-1. 2. Entitlement to service connection for diabetes mellitus, as secondary to service-connected compression fracture of L- 1. 3. Entitlement to service connection for hypertension, as secondary to service-connected compression fracture of L-1. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran had active military service from February 1960 to June 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. A videoconference hearing was held before the undersigned in May 2006. The Board remanded the claim to the RO in July 2006 for further development and consideration. 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 The veteran has a right, as a matter of law, to compliance with the remand orders of the Board. Stegall v. West, 11 Vet. App. 268 (1998). The veteran is currently service-connected for a compression fracture of the L-1 vertebra, which is rated as zero percent disabling. The veteran sustained this fracture from a motor vehicle accident in December 1960. The medical evidence shows that the veteran underwent a magnetic resonance imaging (MRI) study in June 1998 that revealed disc protrusions at the L1-L2, L4-L5 and L5-S1 levels. Accordingly, he currently has a diagnosis of degenerative disc disease of the lumbar spine. The veteran has been denied a compensable rating on the basis that his current degenerative disc disease is not related to and has not been aggravated by the service- connected compression fracture. The veteran underwent VA examinations in January 2003 and October 2004. The veteran has complained that the VA examinations, conducted by the same examiner, were not appropriately conducted and the reports do not accurately reflect what was actually said during the examination. The veteran challenged the validity of these VA examinations and the opinions contained therein. The VA examiner opined that the veteran's current degenerative disc disease is not related to the service-connected disability but rather to age, obesity and the veteran's occupation. In support of his claim, the veteran submitted a letter from his private physician dated in January 2005, subsequent to the last VA examination. This physician said that imaging studies revealed an obvious loss of vertebral height of L1 and mild deformity of L2, which would be consistent with the veteran's history, and the 1998 MRI showed disc protrusions at L4-5 and L5-S1 levels that were slightly eccentric toward the right side and causing decrease in the neural foramina fat. He reiterates the veteran's verbal history of seeing multiple physicians over the years for this problem with frequent flare ups of low back pain. He opined that, in the absence of any other injuries or incidents, it appears at least as likely as not that the veteran's recurrent chronic low back pain is related to the in-service motor vehicle accident. Given the veteran's complaints about the prior VA examinations and the subsequent favorable opinion he submitted, the Board remanded the claim to provide the veteran a new examination. The new examiner was to consider all the evidence of record, including the private physician's letter, and provide an opinion as to whether the veteran's degenerative joint disease is due to the compression fracture vertebra or has been aggravated by the compression fracture. An examination was obtained, and the examiner opined that the veteran's degenerative joint disease was not related to the compression fracture vertebra. However, the examiner did not opine whether the veteran's degenerative joint disease has been aggravated by the compression fracture. Such opinion should be obtained from the examiner. See Stegall, supra. His appeals for service connection for diabetes mellitus and hypertension are inextricably intertwined with this claim, inasmuch as a grant of service connection for the disability could affect the outcome of the claims. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Further consideration of these claims must be deferred to avoid piecemeal adjudication. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Accordingly, the case is REMANDED for the following action: 1. The examiner who conducted the July 2007 VA spine examination is requested to provide an opinion as to whether the veteran's current degenerative disc disease of the lumbar spine is aggravated by the service-connected vertebral compression fracture. If the examiner is unavailable, such opinion should be obtained by an appropriate physician. The claims file must be provided to the examiner for review in conjunction with the examination. The examiner should indicate in the report that the claims file was reviewed, and provide a complete rationale for all conclusions and opinions. The examiner is specifically directed to consider the January 2005 letter from the veteran's private physician in explaining the rationale for the opinion. 2. If, and only if, the examiner opines that the veteran's current degenerative disc disease of the lumbar spine is aggravated by the service-connected vertebral compression fracture, schedule the veteran for a VA examination for his type II diabetes mellitus and hypertension. The claims file must be provided to the examiner for review in conjunction with the examination. The examiner should indicate in the report that the claims file was reviewed, and provide a complete rationale for all conclusions and opinions. After reviewing the claims file and examining the veteran, the examiner should provide an opinion as to whether it is at least as likely as not that the veteran's type II diabetes mellitus and/or hypertension is/are proximately due to or the result of his service-connected vertebral compression fracture or any treatment received for it. 3. Then readjudicate the claims. If any claim continues to be denied, send the veteran and his representative a supplemental statement of the case and give them time to respond. The appellant 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).