Citation Nr: 1314019 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 11-21 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for degenerative disease of the lumbar spine. 2. Entitlement to service connection for a bilateral leg disability, to include pain in the feet, to include as due to a lumbar spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran, the Veteran's wife, the Veteran's daughter ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from October 1944 to November 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). The claims file is currently under the jurisdiction of the VA RO in Des Moines, Iowa. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 In January 2013, the Board remanded the Veteran's claims to the RO for additional development. The Board requested that the RO obtain a supplemental opinion from the VA examiner who provided the July 2012 VA examination with regard to the issue of whether the Veteran's pre-existing congenital spondylosis was aggravated by his active military service. In that regard, the Board noted that the July 2012 opinion found that the Veteran's spondylosis was likely congenital, and that his congenital spondylosis may or may not have played a role in the aggravation of his mechanical back symptoms, and over the years, the Veteran has developed degenerative spondylosis of the spine consistent with his age, morbid obesity, genetics, and occupation. Although the RO obtained a supplemental opinion from the July 2012 VA examiner in March 2013, review of the supplemental opinion reflects that it is inadequate and fails to comply with the directives set forth in the Board's January 2013 remand. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). Specifically, although the supplemental opinion states that the Veteran's pre-existing congenital lumbar spine disease was not aggravated by his active duty service, the rationale provided by the examiner is almost verbatim the same rationale that was provided in the July 2012 examination to support the opinion that the Veteran's lumbar spine disability was not directly related to his active duty service. The examiner did not provide any rationale or discussion whatsoever pertinent to the issue of aggravation. In short, the rationale provided in the March 2013 addendum does not relate to the examiner's opinion that the Veteran's pre-existing congenital spondylosis was not aggravated by the Veteran's active duty service, and there is no relevant rationale provided in the opinion to support the examiner's conclusion. Accordingly, the Board finds the March 2013 addendum to be inadequate, and a new supplemental opinion must be obtained. See 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). The issue of entitlement to service connection for a bilateral leg disability is inextricably intertwined with the issue of entitlement to service connection for degenerative disease of the lumbar spine, as the Veteran contends that his current bilateral leg disability may have been caused by his lumbar spine disability. Thus, adjudication of the claim for entitlement to service connection for a lumbar spine disability may affect the merits and outcome of the claim for entitlement to service connection for a bilateral leg disability. See 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 would significantly impact on the other). Accordingly, the claim for entitlement to service connection for a bilateral leg disability is remanded for consideration along with the claim for entitlement to service connection for a lumbar spine disability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran's claims file must be returned to the examiner who provided the opinion in the July 2012 VA examination report and the March 2013 addendum for explanation and rationale to support the opinion that the Veteran's pre-existing congenital lumbar spine disease was not aggravated by his active duty service. The Veteran's claims file, including all electronic records as well as the Veteran's corroborated reports of an in-service fall and low back pain since that time, must be reviewed. The RO must advise the VA examiner that the Veteran's lay statements of record are competent evidence of in-service and post-service symptomatology, and must be considered and discussed in the opinion provided. The examiner must specify in the report that these records were reviewed. A complete rationale for all opinions must be provided. 2. The RO must notify the Veteran that it is his responsibility to report for any scheduled 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 (2012). 3. After the requested medical opinion has been provided, the RO must review the medical report to ensure that it is in complete compliance with the directives of this remand. The medical report must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once. 4. The RO must then re-adjudicate the Veteran's claims. If any benefit sought on appeal remains 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. 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. 2012). _________________________________________________ L. M. BARNARD Acting 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) (2012).