Citation Nr: 1316944 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 08-28 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a back condition, to include as secondary to service-connected residuals of a right leg fracture. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from March 1974 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied service connection for a back condition, on both a direct and secondary basis. The Veteran presented testimony before the undersigned Veterans Law Judge (VLJ) in May 2010. A transcript of the hearing is of record. In August 2010, the Board remanded the claim so that additional VA medical records could be obtained, and to provide the Veteran with a VA examination of his back. The claim was again remanded in February 2011 because the directives in the August 2010 remand were not completed. For the reasons to be discussed in more detail below, the Veteran's claim of entitlement to service connection for a back disorder must again be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. THE ISSUE OF ENTITLEMENT TO A TOTAL DISABILITY RATING BASED UPON INDIVIDUAL UNEMPLOYABILITY (TDIU) DUE TO SERVICE-CONNECTED DISABILITY HAS BEEN RAISED BY THE RECORD, BUT HAS NOT BEEN ADJUDICATED BY THE AGENCY OF ORIGINAL JURISDICTION (AOJ). THEREFORE, THE BOARD DOES NOT HAVE JURISDICTION OVER IT, AND IT IS AGAIN REFERRED TO THE AOJ FOR APPROPRIATE ACTION. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012), are met. As mentioned above, this claim has been previously remanded twice. Most recently, in February 2011, the Board directed the Veteran to be provided with a VA examination for the purpose of determining the nature and etiology of his back disorder. At the April 2011 VA examination, the examiner provided an opinion on etiology but did not provide a diagnosis. Indeed, no diagnostic tests were conducted. A remand by the Board confers on the claimant, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). As such, the Veteran is entitled to a complete examination of his back to determine both the cause of his chronic pain, as well as the etiology. The Board observes that the Veteran has been, during the pendency of this case, diagnosed with osteoporosis, mild degenerative disk disease, lumbar disk disease, and traumatic arthropathy. See VA treatment records dated July 1, 2010 & December 8, 2009; Cape Code Hospital record dated July 1, 2007; Dr. H.S. dated August 29, 2007. Further, the VA examiner's opinion is inadequate for adjudicatory purposes. He indicated that the combination of the Veteran's "convoluted" history, lack of documentation in the file, time that has passed since the spiral fracture in August 1974, and the Veteran's age at the time of the incident prevented him from making an informed opinion, and instead that he would have to "deal in speculation." He thus opined that the Veteran has a current back problem that is not related to service. He also said that there was no documentation in the file that would indicate the etiology for the collateral damage. See VA examination dated April 1, 2011. A medical report that declines to provide an opinion on etiology on the basis that doing so would be speculation is inadequate, unless it is clear from the record that this assessment was arrived at after all due diligence in seeking relevant information that may have a bearing on the opinion, and the examiner explains why it would not be possible to obtain a firmer opinion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). Here, the VA examiner stated the Veteran's medical history was convoluted and that he did not have enough information to render an opinion. He does not explain why a convoluted history would make rendering an etiological opinion difficult or impossible, nor does he indicate what he would need to know in order to possibly render an informed opinion. An opinion based on speculation "should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner." Jones, 23 Vet. App. at 390. Further explanation is needed. Notably, the Veteran's private physician provided a positive nexus opinion, whereby he linked the Veteran's lumbar disk disease to the development of plantar fasciitis in the right foot, which led to a gait abnormality, which led to lumbar disk disease. See Dr. H.S. dated August 29, 2007. The Board observes the Veteran was diagnosed with plantar fasciitis in November 2000. See Dr. H.S. dated November 16, 2000. Dr. H.S. also attributed acute onset of mid-thoracic pain to a compression fracture, and later differentiated the Veteran's low back pain from the compression fracture, rather attributing it to low back strain. See Dr. H.S. dated July 18, 2001; May 12, 2003. The Veteran had back surgery at Beth Israel Hospital in or around July 2008. See VA treatment record dated August 4, 2008. He was also noted to be receiving treatment from a spine pain specialist in 2009, and to have gone to the emergency room due to his back in or around June 2010. See VA treatment records dated October 27, 2009 & July 1, 2010. These records, along with updated VA treatment records, should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's updated treatment records from the VA outpatient clinic in Hyannis, dated since May 2011. 2. Contemporaneously with the foregoing, contact the Veteran and request that he identify any additional treatment he has received for his back disorder. The RO/AMC should take appropriate steps to secure copies of any such treatment reports identified by the Veteran that are not already in the record on appeal, to include an emergency room report from June 2010, reports from a spine pain specialist, and report of back surgery in July 2008. All efforts to obtain these records should be noted in the claims file. 3. Following completion of the foregoing, schedule the Veteran for an appropriate VA examination to DETERMINE THE NATURE, i.e., provide a diagnosis or diagnoses, and etiology of any disability affecting his back. The claims file and a copy of this remand must be reviewed by the examiner. The VA examiner should indicate in the report if the claims file was reviewed, and records relied upon in rendering an opinion should be cited. All necessary diagnostic tests should be conducted and all clinical findings reported in detail. The examiner should state whether the Veteran has a current disorder affecting his back. For each diagnosis, the examiner should indicate whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any disorder of the back was either (a) caused by, or (b) aggravated by active duty service or his service-connected residuals of a right leg fracture to include any altered gait associated therewith. The examiner is asked to take into consideration any lay statements the Veteran makes in regard to the causes and symptoms of his back condition. The examiner must provide a comprehensive report including complete rationales for all conclusions. 4. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the requested examination do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinion requested, the report must be returned for corrective action. 5. Finally, readjudicate the claim. If any benefit sought on appeal is not granted, issue an updated supplemental statement of the case (SSOC) and give the Veteran and his representative an appropriate amount of time to respond to it. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ P.M. DILORENZO 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).