Citation Nr: 1228024 Decision Date: 08/14/12 Archive Date: 08/21/12 DOCKET NO. 04-04 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disorder, to include as secondary to the Veteran's service-connected right knee disorder. 2. Entitlement to service connection for numbness of the feet, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1970. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision issued by the Department of Veterans Affairs (VA), St. Petersburg, Florida Regional Office (RO), which continued a denial of service connection for a back disorder, numbness of the feet, bilateral hearing loss, and a kidney disorder as no new and material evidence had been submitted to reopen the previously denied claims. In an August 2005 decision, the Board reopened the back, feet, and bilateral hearing loss claims and remanded these issues for further development. The Board found that there was no new and material evidence to reopen a claim for entitlement to service connection for a kidney disorder. By rating decision dated in December 2005, the RO granted service connection for bilateral hearing loss. In a June 2006 decision, the Board denied service connection for a back disorder and numbness of the feet. The Veteran appealed the Board's June 2006 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2008 Order, the Court granted a Joint Motion for Remand, and remanded the matter to the Board for further development and readjudication. In May 2008, the Board remanded the claim for further development, to include attempting to obtain alleged missing service treatment records. In May 2009 the Board remanded the case again for VA examinations. In August 2010 the Board remanded the case a third time for a new VA examination and to obtain records from the Social Security Administration (SSA). The Board issued a decision in September 2011 that denied the claims. The Veteran appealed the Board's decision to the Court and in an April 2012 Joint Motion for Remand (Joint Motion), the parties requested that the Court vacate the September 2011 Board decision and remand the claims for further development and readjudication. In an April 2012 Order, the Court granted the Joint Motion. The Veteran submitted additional evidence to the Board in May 2012, which was accompanied by a waiver of consideration by the Agency of Original Jurisdiction (AOJ) and, therefore, can be considered. See 38 C.F.R. § 20.1304. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) was previously referred by the Board but remains unadjudicated by the AOJ. Since then, the issues of increased ratings for anxiety disorder, residuals of a right medial meniscectomy with traumatic arthritis, residuals of a left wrist fracture, residuals of a right fourth finger fracture, and bilateral hearing loss, have been raised by the record and have been acknowledged, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. 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 Joint Motion determined that the Board committed legal error when it did not ensure substantial compliance with the August 2010 remand. More specifically, the Board had instructed that the claims folder be returned to an August 2009 VA examiner for an addendum and, if unavailable or if the opinion could not be provided without another examination, to schedule a new examination. The examiner was also asked to offer an opinion as to whether it is at least as likely as not that the Veteran's service-connected right knee disability aggravated his back disability and "[i]f the examiner must resort to speculation to answer any question, he or she should indicate and explain why it would be speculative to respond" and "provide a rationale for any opinion expressed." The Joint Motion noted that a VA physician different from the August 2009 examiner had reviewed the Veteran's claims folder and provided an opinion without physical examination. It determined that on remand, VA should obtain either another opinion from the August 2009 VA examiner or a new examination if that VA examiner is unavailable. The Joint Motion indicated that the VA examiner should address the concerns raised by the parties (and to be discussed in the next paragraph) and support the opinion with an adequate rationale. The specific concerns raised by the parties in the Joint Motion included a finding that the physician who provided the opinion prior to the Board's September 2011 decision noted that the Veteran's records were "largely silent for right knee condition and/or gait abnormalities," that an October 2009 SSA medical record states that the Veteran's "gait is on his right heel" and that he could not walk on his right toes, that the August 2009 VA examination noted that the Veteran's gait was "antalgic with a standard walker," and that a November 2009 VA physical therapy note stated that the Veteran had an "antalgic gait pattern." The Joint Motion also cited the August 2009 VA examiner's finding that the Veteran "did begin walking with a cane at some point but I do not see a specific recommendation for a cane by physical therapy," and an October 2009 SSA medical record that stated the Veteran "uses a cane for balance always, doctor prescribed," which in the SSA examiner's opinion was "medically necessary." Emphasis was added in the Joint Motion. Given the findings in the Joint Motion, the claim for service connection for a back disorder, to include as secondary to the Veteran's service-connected right knee disorder, is remanded in order to obtain an addendum opinion from the August 2009 VA examiner or a new examination, if needed. Recent VA treatment records should also be obtained. Other action directed by the Joint Motion pertaining to this claim is deferred until the matter is returned to the Board. The claim for service connection for numbness of the feet, to include as secondary to a service-connected disability, is inextricably intertwined with the claim for service connection for a back disorder. See Joint Motion; Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2011). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the Gainesville VA Medical Center, dated since October 2011. 2. Return the claims folder to the examiner who conducted the August 2009 for an addendum, based on a review of the expanded record. If that examiner is unavailable or determines that an opinion cannot be provided without another examination, the Veteran should be scheduled for a new examination. Based on the review of the record (and new examination, if one is conducted), the examiner should offer an opinion as to the following questions: (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any currently diagnosed back disorder had its onset during active service or is related to any in-service disease, event, or injury? (b) If the answer to (a) is no, is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected right knee disability (residuals of a right medial meniscectomy with traumatic arthritis) caused any currently diagnosed back disorder? (c) If the answers to (a) and (b) are no, is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected right knee disability (residuals of a right medial meniscectomy with traumatic arthritis) aggravated (i.e., caused an increase in severity of) any currently diagnosed back disorder? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of back disability (i.e., a baseline) before the onset of the aggravation. In answering these questions, the examiner is asked to specifically discuss the records showing gait abnormality and the need for a cane. If the examiner must resort to speculation to answer any question, he or she should so indicate and explain why it would be speculative to respond. The examiner is also requested to provide a rationale for any opinion expressed. 3. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. Finally, readjudicate the issues on appeal. If any of the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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 or by the U.S. 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. 2011). ______________________________________________ M. E. LARKIN 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) (2011).