Citation Nr: 1325590 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 05-25 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected low back disability. 2. Entitlement to service connection for an inner thigh/groin disability, to include as secondary to a service-connected low back disability. 3. Entitlement to service connection for headaches, to include as secondary to a service-connected low back disability. 4. Entitlement to a total disability rating for compensation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: J. Bryan Jones III, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from May 1987 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June 2004 and July 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In March 2009, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO. In June 2009, the Board remanded this matter for additional development. The Board denied these claims in an April 2011 decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims. In a December 2012 memorandum decision, the Court vacated the Board's April 2011 decision and remanded these claims. In June 2013, the Veteran's attorney submitted signed statements by the Veteran and a friend, two receipts from the Veterans Canteen Service, and two recent letters from a private physician. That additional evidence was accompanied by a signed waiver of initial RO consideration. The Board accepts the additional evidence for inclusion in the record. 38 C.F.R. §§ 20.800, 20.1304(c) (2012). The appeal is REMANDED to the RO. REMAND Unfortunately, a remand is required for the issues on appeal. 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. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). According to the Court's memorandum decision of December 2012, the Board relied on inadequate November 2009 VA examinations and medical opinions in adjudicating the Veteran's service connection claims. Concerning the service connection claim for a cervical spine disability, the Court found that both the VA examiner and the Board found there was no evidence of a cervical spine disability in service although service medical records indicated that the Veteran complained of neck stiffness during service in the time period after he incurred the injury that caused his service-connected back disability. Thus, the examination was based on an incorrect factual premise and the Board relied on an inadequate medical opinion. Reonal v. Brown, 5 Vet. App. 458 (1993). In addition, the November 2009 medical nexus opinion did not comply with the Board's June 2009 remand instructions because the examiner did not state an opinion in terms of probability or state whether the cervical spine disability was caused or aggravated by the Veteran's 1988 in-service back injury or his service-connected low back disability. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, on remand the RO must schedule the Veteran for an examination and medical nexus opinion concerning his cervical spine disability that will take into account all the evidence of record, including service complaints of neck pain and the evidence submitted by the Veteran's attorney in June 2013. Concerning the Veteran's service connection claim for a left thigh/groin disability, the Court found that the Board relied on an inadequate examination to find the Veteran did not have a current disability. The Court found that the November 2009 VA examiner provided absolutely no rationale for the conclusion that the Veteran did not have a current disability, despite noting his symptoms and pain. In addition, the Court suggested that the VA examiner apparently reached her conclusion before having access to the December 2009 bone imaging scan of the Veteran's left pelvis, which showed degenerative changes along the L5 vertebra, possibly an osteoporatic compression fracture. Therefore, on remand the RO must schedule the Veteran for an examination and medical nexus opinion concerning his left thigh/groin disability that will take into account all the evidence of record, including the December 2009 bone scan showing a possibly osteoporatic compression fracture and the evidence submitted by the Veteran's attorney in June 2013. Concerning the Veteran's service connection claim for headaches, the Court found that the November 2009 VA examiner erroneously reported VA medical records did not indicate any complaints of headaches until 2003, while the Board found VA medical records dated in September 1990 and February 1991 showed headache complaints. Thus, that examination was based on an incorrect factual premise and the Board relied on an inadequate medical opinion. Reonal v. Brown, 5 Vet. App. 458 (1993). In addition, the November 2009 medical nexus opinion did not comply with the Board's June 2009 remand instructions because the examiner did not state the opinion in terms of probability and did not state whether the headache disability was related to the Veteran's in-service April 1988 low back injury or to any other event in service. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, on remand the RO must schedule the Veteran for an examination and medical nexus opinion concerning his headache disability that will take into account all the evidence of record, including post-service headache complaints in the 1990s and the evidence submitted by the Veteran's attorney in June 2013. Concerning the Veteran's claim for a TDIU, the Board finds that the TDIU claim is inextricably intertwined with the pending service connection claims. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). | On readjudication, the RO should note that the Court's December 2012 decision faulted VA for not discussing whether the Veteran's work as a barber in a VA canteen should be considered a protected environment and, therefore, marginal employment that would not preclude an award of TDIU. Therefore, on remand, the RO should consider the evidence concerning a TDIU submitted by the Veteran's attorney in June 2013 and discuss whether the Veteran's employment as a barber with the VA Canteen Service constitutes marginal employment. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his attorney and ask them to specify all private and VA medical care providers who have treated him for his claimed neck, left hip/groin, and headache disabilities. After the Veteran has signed the appropriate releases, attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file, to specifically include any private medical records from Dr. A.B.D., and any records of treatment or evaluation from the Shreveport VAMC since August 2009 to the present. 2. After obtaining the above records, schedule the Veteran for an appropriate VA examination, by a medical doctor examiner other than the November 2009 VA examiner, to assess the nature and etiology of any cervical spine disability, inner thigh/groin condition, and headaches, and also evaluate the impact of any service-connected disability or disabilities on employability. The examiner must review the claims file and must note that review in the report. The examiner should provide a rationale for the opinions rendered and reconcile the opinions with all pertinent evidence of record, including the Veteran's service medical records, including complaints of neck pain; post-service medical records, including September 1990 and February 1991 complaints of headaches; the report of the November 2002 private physician relating the Veteran's groin injury to his civilian employment; the objective finding of a quarter-sized knot in the back of the head made at the March 2009 Board hearing; the December 2009 bone imaging scan of the Veteran's left pelvis which showed degenerative changes along the L5 vertebra as possibly an osteoporatic compression fracture; and the evidence newly submitted to the Board by the Veteran's attorney in June 2013, especially a private medical opinion that neck pain and left hip/groin pain could be directly related to a service injury. The VA examiner's opinions should specifically address the following: a) State whether the Veteran's currently diagnosed spondylosis of the cervical spine is at least as likely as not (50 percent probability or greater) related to his April 1988 low back injury for which he was treated in service, or to any other aspect of his period of active duty? b) If not, then state whether the Veteran's spondylosis of the cervical spine is at least as likely as not (50 percent probability or greater) caused or aggravated by the service-connected low back disability? c) Diagnose any current left thigh/groin disability. d) If the Veteran has a current left thigh/groin disability, is it at least as likely as not (50 percent probability or greater) related to his April 1988 in-service low back injury for which he was treated in service, or to any other aspect of his period of active duty? e) If not, is it at least as likely as not (50 percent probability or greater) that any left thigh/groin disability was caused or aggravated by the service-connected low back disability? f) Is it at least as likely as not (50 percent probability or greater) that any currently diagnosed headaches are related to his in-service April 1988 low back injury for which he was treated in service, or to any other aspect of his period of active duty? g) If not, is it at least as likely as not (50 percent probability or greater) that any currently diagnosed headaches were caused or aggravated by the service-connected low back disability? h) State whether the Veteran's service-connected low back disability (low back strain with early degenerative disc disease with narrowing of the disc space, L5-L1), without consideration of any nonservice-connected disabilities, renders him unable to secure or follow a substantially gainful occupation. i) If the examiner finds that one or more of the disabilities for which the Veteran is claiming service connection (cervical spine disability, left thigh/groin disability, or headaches) is related to the Veteran's April 1988 in-service injury, to any other aspect of his military service, or was caused or aggravated by his service-connected low back disability, state whether that disability or disabilities, in connection with his service-connected low back disability but without consideration of any nonservice-connected disabilities, renders him unable to secure or follow a substantially gainful occupation. 3. Then, readjudicate the claims. In adjudicating the Veteran's TDIU claim, the RO must consider the new evidence submitted by the Veteran's attorney in June 2013 and discuss whether the Veteran's employment at VA should be considered a protected environment and thus, marginal employment. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ HARVEY P. ROBERTS 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).