Citation Nr: 1315501 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 00-22 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a lumbosacral strain including as secondary to the service-connected right knee disability. 2. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 1983. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In his August 2000 substantive appeal, the Veteran requested a hearing before the Board sitting in Washington, DC. The Veteran did not appear for his hearing scheduled in September 2011, nor did he or his representative show good cause for the lack of appearance. Therefore, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.702 (d) (2012). In a November 2011 decision, the Board reopened previously denied claims for entitlement to service connection for a left knee disorder, a lumbosacral strain including as secondary to the service-connected right knee disability, and defective vision including as secondary to a traumatic brain injury; however, the Board denied such claims on the merits. In the same decision, the Board remanded the issue of entitlement to a TDIU for additional development. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2012, the Court issued an Order granting a joint motion of the parties (Joint Motion) and remanded the case to the Board for further action. Specifically, the Court vacated in part, the Board's November 2011 decision which denied the Veteran's claim of entitlement to service connection for a lumbosacral strain including as secondary to the service-connected right knee disability, and remanded the issue to the Board. The Veteran expressly indicated that he did not intend to pursue an appeal of the Board's denial of the issues of entitlement to service connection for a left knee disorder, and defective vision including as secondary to a traumatic brain injury. Thus, those issues are considered abandoned. See Buckley v. West, 12 Vet. App. 76, 81 (1998); Bucklinger v. Brown, 5 Vet. App. 435, 436 (1993). REMAND The Veteran contends that his current lumbosacral spine disability is related to his service, and in the alternative, that it is due to his service-connected right knee disability. The Veteran's service treatment records contain multiple complaints for several orthopedic problems; however, such records including his June 1979 induction physical examination report, and December 1982 reenlistment examination report, are negative for complaints of or treatment for lumbosacral spine symptoms or a diagnosis of a lumbosacral spine disability. The Veteran separated from active service in June 1983. Post-service VA outpatient records include an August 1988 VA examination report which notes the Veteran's report that difficulty lifting with his knees as a result of his job as a truck driver caused additional strain on his back; the physician diagnosed chronic lumbosacral strain. A September 1988 record notes the Veteran's report of back pain since July 1988 after he unloaded 48,000 pounds from a truck. A May 1989 record shows the Veteran was hospitalized for continued symptoms of low back pain and at the time, the Veteran reported that such pain began in July 1988, one week after unloading a truck; the physician diagnosed low back pain with an etiology of possible degenerative disc disease. A March 1994 record demonstrates the Veteran reported that he injured his back in service in 1979, while lifting rocks for a garden; the diagnosis was recurrent lumbosacral strain and a contusion of the lumbar spine as per the Veteran's report. A January 1999 Social Security Administration examination report indicates the Veteran reported that he injured his back due to lifting heavy objects in 1989, while in the Marine Corps. In November 2001, the Veteran underwent a fee-based examination, during which he reported that he injured his back in service between 1988 and 1993. Upon examination, the physician diagnosed lumbar spondylosis with lumbosacral strain. The physician concluded that the disorder was not related to or aggravated by the Veteran's service-connected right knee disability. In a January 2004 private record, the Veteran's physician noted that the Veteran had a chronic back strain from knee problems. In September 2004, the Veteran underwent another fee-based examination, during which he reported that he experienced low back pain due to his lumbosacral strain for the past 19 years. Upon examination, the physician indicated that he did not refute the Veteran's diagnoses of lumbosacral strain and degenerative disc disease. The physician concluded that the right knee and lumbar spine disorder developed independently and that the lumbar spine disorder was not related to the service-connected right knee disability. To date, the aforementioned fee-based examinations, as well as the January 2004 private opinion are inadequate for rating purposes. Specifically, the etiology opinions offered by the examiners and the Veteran's private physician are merely conclusions, and are not supported by any medical analysis or explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 204 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight). In this regard, once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Accordingly, a new medical examination and opinion are necessary to make a determination in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Finally, the disposition of the claim being remanded herein is directly relevant to the outcome of the instant claim for a TDIU, inasmuch as it may determine whether the Veteran satisfies the schedular criteria for a TDIU. Thus, the claim of entitlement to service connection for a lumbosacral strain including as secondary to the service-connected right knee disability is "inextricably intertwined" with the issue of a TDIU, and the disposition of the TDIU claim must therefore be deferred pending the resolution of the preliminary matter. See 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 for the following actions: 1. Schedule the Veteran for an appropriate VA examination in order to determine the current nature and likely etiology of any lumbosacral spine disability that may be present. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All tests deemed necessary must be performed. Based on examination findings and review of the record, the examiner must answer the following questions: (a) Does the Veteran have a current lumbosacral spine disability, to include a strain, spondylosis, and/or degenerative disc disease? (b) If the answer to (a) is yes, is it at least as likely as not (i.e., probability of 50 percent or greater) that any currently diagnosed lumbosacral spine disability had its onset in service or is otherwise related to service? In answering this question, the examiner must consider and comment on the post-service medical evidence of record, which notes the Veteran's lay contentions regarding the onset of his low back pain. The examiner is instructed to accept as fact that the Veteran served on active duty from June 1979 to June 1983. Specifically, the examiner must consider the following records: * the September 1988 VA record which notes the Veteran's report of back pain since July 1988 after he unloaded 48,000 pounds from a truck; * the May 1989 VA record which notes the Veteran's report that his back pain began in July 1988, one week after unloading a truck; * the March 1994 VA record which notes the Veteran's report that he injured his back in service, in 1979, while lifting rocks for a garden; * the January 1999 Social Security Administration examination report which notes the Veteran's report that he injured his back due to lifting heavy objects in 1989, while in the Marine Corps; * the November 2001 fee-based examination report which notes the Veteran's report of a back injury in service between 1988 and 1993; and * the September 2004 fee-based examination report which notes the Veteran's report of low back pain due to his lumbosacral strain for the past 19 years. (c) If the answer to (b) is no, is it at least as likely as not that any currently diagnosed lumbosacral spine disability is caused or aggravated (worsened) by the Veteran's service-connected right knee disability? In answering this question, the examiner must consider and comment on the post-service August 1988 VA examination report, that notes the Veteran's report of difficulty lifting with his knees which caused additional strain on his back, due to his job as a truck driver. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Thereafter, readjudicate the Veteran's claims, with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this remand. The Veteran's claim of entitlement to a TDIU must be readjudicated on schedular and extraschedular bases. If the decision with respect to any of the claims remains adverse to the Veteran, he and his representative must be furnished a supplemental statement of the case and afforded a reasonable period of time to respond. 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). 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).