Citation Nr: 1314772 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-01 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a gastrointestinal disability. 2. Entitlement to service connection for residuals of a head injury, to include as secondary to a service-connected disability. 3. Entitlement to service connection for a headache disability, to include as secondary to a service-connected disability. 4. Entitlement to service connection for a low back disability, claimed as chronic lower back pain due to multilevel spondylosis, multiple disc herniation, status post multilevel laminectomy/discectomy and spondylolisthesis. REPRESENTATION Veteran represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Reno, Nevada (RO). The above-captioned claims were previously before the Board in September 2011 and November 2012. On each occasion, the Board remanded the Veteran's claims for additional development. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND A. Gastrointestinal Disability Pursuant to the Board's September 2011 remand, the Veteran was provided a VA examination in November 2011. Specifically, the Board requested the VA examiner to provide an opinion as to whether it was at least as likely as not that any gastrointestinal disability diagnosed, "including but not limited to gastritis shown in the October 2009 VA outpatient treatment record" was related to the Veteran's military service, including whether it is related to the gastrointestinal complaints noted in July 1968. After a clinical examination, with respect to intestinal conditions, the November 2011 VA examiner provided a diagnosis of chronic diarrhea, with an onset of 2008. With respect to stomach and duodenal conditions, the examiner provided a diagnosis of reflux esophagitis. The examiner then opined as follows: The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claim in-service injury, event, or illness. ... One episode of diarrhea during service which was treated and separation examination showed no residuals[.] The gastroenteritis is not a long standing conditions [sic] and can not last for many years. The diarrhea episode on 2008 has no nexus to the service condition. Even though the examiner did not provide a diagnosis of gastritis as a result of the November 2011 VA examination, the Board directed the examiner to address the all diagnosed gastrointestinal disabilities, including the October 2009 diagnosis of gastritis. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). The medical opinion addressed gastritis and stated it was not related to the Veteran's complaints in 1968 in service. However, no rationale was provided, and there was no indication as to whether it might be related to service other than just to that one complaint in 1968. The Court has held that much of the value of a medical opinion comes from its rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As the RO did not ensure that the November 2011 VA examiner provided a sufficient rationale the opinion, the Board finds that the RO did not substantially comply with the September 2011 Board remand directives. Consequently, the Board finds that a remand is required in order to obtain a supplemental opinion or to afford the Veteran another VA examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance). B. Low Back Disability Pursuant to the Board's September 2011 remand, the Veteran was provided a VA examination in November 2011. Specifically, the Board requested that the examiner address whether it was at least as likely as not that the Veteran's low back disability/disabilities was/were etiologically related to his military service, "to include consideration of whether the currently diagnosed back disorder(s) constitute an aggravation of an in-service injury, citing to the specific evidence on which the opinion was based." As a result of clinical testing, the diagnosis was degenerative disease of the lower back. The examiner then opined as follows: The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. ... The [V]eteran fall after service in 2004 was not aggravated the 2008 [V]eteran low back condition. There was nothing on his separation service records that showed residuals of back condition. There is no Nexus between the fall of 2004 and his back condition while in service. Although the examiner clearly indicated that it was less likely than not that the Veteran's low back disability was incurred in or caused by his military service, the Board is unable to discern what the examiner was attempting to convey in the quoted rationale. As such, the Board finds that the November 2011 VA examination is not adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that the articulated reasoning enables the Board to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion). "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board finds that a remand is required in order to obtain a supplemental opinion or to afford the Veteran another examination. Additionally, the Board finds the RO did not substantially with the Board's September 2011 remand directives by not ensuring that the November 2011 VA examination was adequate. Consequently, the Board finds that a remand is required in order for the RO to undertake corrective actions. See Stegall, 11 Vet. App. at 271. C. Residuals of a Head Injury and a Headache Disability According to a February 2013 memorandum associated with the claims file, the Appeals Management Center found that a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) had been reasonably raised by the record. Consequently, the Appeals Management Center referred this claim to the RO for the appropriate action. As a result of a November 2011 VA examination, the examiner opined, in part, as follows: [The] Veteran has additionally history of Depression, PTSD, history of substance abuse (in 70's and 80's). He also has document[ed] chronic neck pain and history of multiple ear infections/sinus problems. These diagnoses can all impact the presence of headache, and can contribute to the presence of headaches alone or in combination. Based on the above, the Board finds that the Veteran's claims of entitlement to service connection for residuals of a head injury and a headache disability are inextricably intertwined with the reasonably raised claim of entitlement to PTSD. Generally, all issues "inextricably intertwined" with the issue certified for appeal, are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). As the issues of entitlement to service connection for residuals of a head injury and a headache disability are "intertwined" with the issue of entitlement to service connection for PTSD, these claims are remanded to the RO in accordance with the holding in Harris for contemporaneous adjudication. Accordingly, the case is REMANDED for the following action: 1. The RO must make available the Veteran's claims file to the VA examiner who administered the November 2011 VA gastrointestinal examination and ask that a supplemental opinion be provided. After reviewing the claims file, including the evidence submitted since the September 2012 supplemental statement of the case, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that the any currently diagnosed gastrointestinal disability was caused by or otherwise related to his military service. In providing this opinion, the examiner must address the October 2009 diagnosis of gastritis even though gastritis may or may not be currently present. The examiner must fully explain the rendered opinion, including a thorough underlying rationale for any conclusion reached. 2. The RO must make available the Veteran's claims file to the VA examiner who administered the November 2011 VA low back examination and ask that a supplemental opinion be provided. After reviewing the claims file, including the evidence submitted since the September 2012 supplemental statement of the case, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that the any currently diagnosed low back disability was caused by or otherwise related to his military service, to include consideration of whether the currently diagnosed back disability constitutes an aggravation of an in-service injury, citing to the specific evidence on which the opinion is based. In providing this opinion, the examiner must address the Veteran's lay statements as to symptoms during and after his active duty service. The examiner must fully explain the rendered opinion, including a thorough underlying rationale for any conclusion reached. 3. The RO should adjudicate the claim of entitlement to service connection for PTSD. 4. Once the above actions have been completed, the RO should then adjudicate the Veteran's above-captioned claims after the claim of entitlement to service connection for PTSD to include whether the Veteran's head injury and/or headaches are caused or aggravated by a service-connected disability including PTSD is service-connection is granted to PTSD. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).