Citation Nr: 1315532 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 99-19 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a back disability, to include as secondary to the Veteran's service connected leg length discrepancy. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Attorney ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from April 1969 to October 1971. This appeal initially came to the Board of Veterans' Appeals (Board) from a July 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which determined there was not new and material evidence to reopen a previously denied claim for service connection for a back disability. The Board first considered the appeal of this claim in January 2001, more than 12 years ago, concluding that new and material evidence had not been submitted to reopen the claim. The Veterans Law Judge in that decision has long since retired from the Board. The Veteran appealed that Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In April 2001, the Court vacated the Board's decision and granted the Secretary's motion for remand (Court decision one). The Board undertook development of the claim as required by the Court and, in July 2003, remanded the claim to the RO for completion of all necessary development. Following completion of the requested development, the Board issued another decision in November 2004 reopening the claim of service connection for a back disability, and then remanding it for additional evidentiary development. In November 2008, the Board issued another decision once again denying service connection for the Veteran's back disorder based on the evidence. The Veteran appealed that decision, and the Court once again vacated the Board, remanding the claim for further development and consideration consistent with the joint motion for remand (JMR) (Court decision two). Specifically, the JMR concluded that the VA examination that had been provided was inadequate. In response to the JMR, the Board remanded the claim in November 2010 to remedy the identified alleged inadequacies of the June 2008 VA examination. The examiner provided an updated opinion, and in April 2012 the Board issued a decision again denying service connection for the Veteran's back disorder, as well as denying the Veteran's claim for total disability based on individual unemployability (TDIU). The Veteran appealed the Board's 2012 decision, and in April 2012 the Court again vacated the Board, again remanding the claim for further development and consideration consistent with the JMR (Court decision three). The appeal is REMANDED to the Department of Veterans Affairs Region Office. VA will notify the Veteran if further action is required. REMAND As noted above, the Board denied service connection for a back disability in April 2012. The Veteran appealed and the parties filed a JMR in April 2012. Specifically, the JMR concluded that the 2010 VA examination was inadequate and failed to comply with the Board's 2010 remand instructions as required by Stegall v. West, 11 Vet. App. 268, 271 (1998). The basis of which is unclear. The JMR did not address numerous line of reasoning within the Board's April 2012 decision, including a finding that the Veteran lack all credibility as an historian of his back disability. In addition, the Court found the Veteran's claim for TDIU should also be remanded as an inextricably intertwined claim citing Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001). As to the inadequate 2010 examination the Court noted the examiner did not adequately address the effect, if any, of any pre-existing back disability on the 1985 back injury, and to indicate the amount the Veteran's current back disability was attributable to any chronic back disability that resulted from the in-service aggravation of pre-existing factures of his right tibia and fibula. The Court also noted the examiner failed to address all treatment records dating back to 1979. As a result of the join motion, the Board is once again remanding this matter to comply with the directions set forth in the JMR as it related to the identified inadequacies of the December 2010 VA examination. With regards to the issue of TDIU the Court noted the Board denied the Veteran's TDIU claim based on the Court's determination that the Veteran's back disability was not related to the Veteran's military service or to a service connected disability. Therefore, the facts of these two claims are "intimately connected" and the interests of judicial economy and avoidance of piecemeal litigation required the claims to be appealed together. Smith, 236 F.3d at 1372. As such, the Veteran's claim for TDIU is also remanded. Finally, the Board notes in a December 2012 written letter the Veteran's representative requested a travel board hearing at the Veteran's local VA regional office, the New Orleans, Louisiana RO. Such hearing should be scheduled. Normally travel Board hearing requests to RO are remanded without additional development by the Veterans Law Judge who issues the remand for the hearing. However, the order the Court, in the form of the JMR, must be obeyed. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who provided the December 2010 VA nexus opinion, or if he is unavailable, to another examiner. If it is determined that an opinion cannot be reached without conducting an examination, an examination should be scheduled. The claims folder and a copy of this remand must be made available to the examiner and such review should be noted in the report. A complete rationale should be provided for any opinion expressed. Consistent with the factual history of the Veteran's back condition based on the medical record (not the Veteran's statements), the examiner should provide an opinion as to the following questions: a) Is it at least as likely as not (50 percent or greater) that the Veteran developed a chronic back disability secondary to an in-service increase in disability due to pre-service fractures of his right tibia and fibula, including the shortening of his right leg? b) What effect, if any, did any pre-existing back disability have on the Veteran's 1985 back injury at work? In addition, what effect did this 1985 injury have on any back disability that was present prior to the injury? c) If it is possible to determine, what amount of the Veteran's current back disability is attributable to any chronic back disability that resulted from the in-service aggravation of the pre-service fractures of his right tibia and fibula. d) What relationship, if any, exists between any current cervical spine degenerative disc disease and any current degenerative disc disease of the lumbar spine? In responding to each of these questions the examiner should address all treatment records relating to the Veteran's back disorder, to include treatment records dating back to 1979. A review of the October 2012 Joint Motion for Remand may assist the health care provider in his or her review of this case and understanding of what appears to be required by the Veterans Court. In this regard, it is important to note that the Veteran's credibility as historian of his back disability, as made clear within the Board prior April 2012 determination, is in serious question. 2. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. If the decision remains unfavorable, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 3. Schedule the Veteran for a travel board hearing at the New Orleans regional office in the order the that request was received (December 2012). Notify him of the date, time, and location of his hearing, a place a copy of this letter in the claims file. If, for whatever reason, he changes his mind and elects not to have a hearing, or fails to report for the scheduled hearing, then also document this in the claims file. 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). _________________________________________________ JOHN J. CROWLEY 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).