Citation Nr: 1234942 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 06-19 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for spinal stenosis status post lumbar laminectomy (low back disorder). 2. Entitlement to service connection for bilateral aseptic necrosis status post total hip arthroplasties (hip disorder). 3. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. This case was most recently remanded by the Board in April 2011 for further development. The case has been returned to the Board for adjudication. 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 Board regrets remanding this case another time; however, such is necessary for proper evidentiary development of the Veteran's claims. As was noted in the Introduction, the Board remanded the Veteran's low back and hip disorders and TDIU claim in April 2011 for further procedural and evidentiary development. In particular, the Board instructed the AOJ to obtain a medical opinion as to whether the low back and hip disorders were secondary to his service-connected hypertension, or whether his hip disorder was secondary to his low back disorder. See the Board's April 2011 decision, page 16. The examiner was asked whether the low back disorder was caused by or is aggravated by the Veteran's service-connected hypertension. The Board instructed the examiner that if service-connected hypertension aggravates (i.e., permanently worsens) a low back disorder and/or hip disorder, the examiner should identify the portion of disability which is attributable to the aggravation. See 38 C.F.R. § 3.310(a) (2010); Allen v. Brown, 7 Vet. App. 439 (1995); See the Board's April 2011 decision, page 17. The Board also requested that the examiner determine whether the hip disorder was caused by, or is aggravated by the Veteran's low back disorder, specifically surgery for the low back. Id. The Veteran appeared for a VA examination in May 2011. Although the examiner provided an opinion as to whether the Veteran's service-connected hypertension caused the Veteran's hip and low back disorders, she did not provide an opinion as to whether his hypertension aggravated his hip and low back disorders. Furthermore, the examiner did not provide an opinion as to whether the Veteran's low back disorder and specifically his back surgery aggravated his hip disorder. As the Board's April 2011 remand instructions have not been complied with, the Veteran's service-connection claim for low back and hip disorders must be remanded again for a supplemental medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. Consequently, the Veteran's claim for TDIU must also be remanded, as it is inextricably intertwined with the Veteran's service-connection claims. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) [noting that where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together]; see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. Accordingly, the case is REMANDED to the Veterans Benefits Administration (VBA) for the following action: 1. VBA should contact the Veteran and request that he identify any additional medical treatment he has received for his low back and hip disorders. VBA should take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not already in the record on appeal. Efforts to obtain these records should be memorialized in the Veteran's VA claims folder. Most recent VA records should also be obtained and associated with the claims file. 2. VBA should then send the Veteran's claims folder back to the May 2011 VA examiner so that an Addendum can be created which includes an opinion as to whether any low back disorder and/or hip disorder found on examination was aggravated by the Veteran's service-connected hypertension. If service-connected hypertension aggravates (i.e., permanently worsens) a low back disorder and/or hip disorder, the examiner should report the baseline level of severity of the low back disorder and/or hip disorder prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. In doing so, the examiner should acknowledge and discuss the findings contained in the record as well as the Veteran's statements as to nexus and continuity of symptomatology. The claims folder, to include a copy of this Remand, should be made available to the examiner and the examination report should reflect that the claims folder was reviewed. A complete rationale for any opinion expressed and conclusion reached should be set forth, and any contradictory evidence must be addressed. If the May 2011 VA examiner is unavailable or unwilling to provide an Addendum report, a medical opinion with supporting rationale should be obtained from another qualified medical professional. If any examiner determines that physical examination and/or diagnostic testing of the Veteran are necessary, or that a specialist should be consulted, such should be scheduled. A report should be prepared and associated with the Veteran's VA claims folder. 3. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the VBA should readjudicate the Veteran's service-connection and TDIU claims. If the claims are denied, in whole or in part, VBA should provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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 Supp. 2011). _________________________________________________ DAVID L. WIGHT 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).