Citation Nr: 1234943 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 06-15 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a right ankle disorder, to include as due to a service-connected back disorder. 2. Entitlement to a total disability rating for compensation based on individual unemployability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served in the Indiana State and Kentucky State Army National Guard from October 1979 to August 1996. He served on inactive duty for training (INACDUTRA) from January 1980 to May 1980 and had a period of active duty for training (ACDUTRA) in August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2006 and November 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In August 2011, the Veteran underwent a VA examination addressing the etiology of his right ankle disorder. The VA examiner concluded that the Veteran's right ankle disorder was not related to his service-connected back disability because there was no evidence of complaints of back pain in the medical record at the time of his right ankle injury, and thus "no evidence to support a nexus . . . ." Although the VA examiner noted the Veteran's lay statements that he had a back spasm which caused him to fall and injure his ankle, and even stated that "[i]f such a spasm occurred while descending stairs it is within the realm of possibility one could collapse and twist an ankle in the process," the VA examiner ultimately concluded that the Veteran's right ankle disability was not related to his service-connected back disability. The VA examiner's rationale for the opinion is essentially a finding that the Veteran's lay statements regarding the cause of his fall were not credible statements because the emergency room report from the injury did not corroborate his statements. In that regard, the VA examiner is not qualified to make the determination that the Veteran's statements lack credibility, as the findings of competency and credibility are findings of fact, which are within the Board's province to make. Moreover, the Court has held that lay evidence may not be discounted for lack of credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Because the VA examiner's opinion is based on a finding that the VA examiner is not qualified to make, the Board finds that the opinion provided by the examiner is inadequate upon which to base an appellate decision. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). Additionally, although the VA examiner found that the Veteran's right ankle disability was not related to his service-connected back disability, the examiner did not provide an opinion as to whether the Veteran's right ankle disorder was aggravated by his service-connected back disorder. The examiner's statement that the Veteran's right ankle disability is not related to his service-connected back disability is insufficient to establish that his service-connected back disorder did not aggravate his right ankle disorder. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Accordingly, the Veteran must be afforded a new VA examination addressing the etiology of his current right ankle disorder. With regard to the Veteran's claim for entitlement to a total disability rating for compensation based on individual unemployability (TDIU), the Board finds that this issue is inextricably intertwined with the issue of entitlement to service connection for a right ankle disorder. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Accordingly, these issues must be adjudicated together. Accordingly, the case is remanded for the following action: 1. The Veteran must be provided with a new VA examination to determine the etiology of his current right ankle disorder. The Veteran's claims file and all records on Virtual VA be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon the evidence of record, to include the Veteran's lay statements which the VA examiner should presume are both competent and credible, the VA examiner must provide an opinion as to whether the Veteran's current right ankle disorder is related to his active duty service. The examiner should also provide an opinion as to whether the Veteran's right ankle disorder was (a) caused by or (b) aggravated by his service-connected back disability. The RO must remind the examiner that the Veteran's lay statements are competent evidence of symptoms during service and thereafter, and must be considered in the opinion. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 2. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the Veteran's last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any of the benefits sought on appeal remain denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).