Citation Nr: 1327580 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 05-38 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder, to include as secondary to a service-connected right ankle disability. 2. Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected right ankle disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2, 1975 to October 21, 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Board notes the Veteran was scheduled for a Board hearing in March 2008, however the Veteran did not appear for this hearing. As the Veteran has not offered a statement of good cause as to why he missed the hearing, the Board will proceed as if the hearing request had been withdrawn. 38 C.F.R. § 20.702(d) (2012). This case was previously brought before the Board in April 2008 and August 2011 at which time the claims were remanded to the Agency of Original Jurisdiction (AOJ) to further assist the Veteran with the development of his appeal. The case is once again before the Board. The issues of entitlement to service connection for a left ankle disability and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's lumbar spine disorder is shown to have been caused by a service-connected disability. CONCLUSION OF LAW A lumbar spine disorder was caused by a service-connected disability. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Since the Board is granting entitlement to service connection for a lumbar spine disorder, the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran is service-connected for a right ankle disability. The Veteran contends that he now has a lumbar spine disorder which was caused or aggravated by his right ankle disability. For the reasons that follow, the Board finds that service connection is warranted. The Veteran was afforded a VA examination in November 2011 for his lumbar spine disorder. The Veteran reported that he had cortisone injections to help with the pain in his back. See also January 2000 and May 2004 VA treatment records with complaints of pain. The examiner found the Veteran's lumbar spine had less movement than normal. He also had pain and guarding of the lumbar spine. A review of March 2010 x-rays showed spondylosis changes of L5-S1 with joint space narrowing and anterior osteophytic spurring. The examiner related this condition to his service-connected right ankle disability. Her rationale was that when an injury occurs in one part of the body, the remaining areas twist and tilt to compensate for the injured area. The altered center of balance and compensating the Veteran has done have contributed to the degenerative changes of the lumbar spine. Accordingly, it was at least as likely as not his lumbar spine disorder was related to his right ankle disability. The VA obtained a medical opinion in January 2013. The examiner opined that it was less likely than not that a lumbar spine disorder was related to service or the Veteran's right ankle. His rationale was that there were no complaints of a lumbar spine disorder in service and that the current changes were part of the normal age related process. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In this case the November 2011 VA examiner offered a thorough rationale for why she believed the Veteran's service-connected right ankle disability was related to the Veteran's lumbar spine disorder. She indicated she had reviewed the claims file and performed an examination of the Veteran. The January 2013 VA examiner opined that the conditions were not related because the two disorders were mutually exclusive events. The examiner did not offer an opinion as to why he believed the degenerative changes of the Veteran's lumbar spine were normal age related changes. He also offered an opinion that the Veteran's right ankle disability was not related to service, although service connection has already been granted. This calls into question whether the examiner thoroughly reviewed the claims file. Accordingly, the Board assigns little probative value to the January 2013 VA medical opinion. The Board assigns the November 2011 VA examination report the most probative value. At the very least, the Board finds the evidence is in relative equipoise. While one VA physician opined that the Veteran's lumbar spine disorder was not related to his right ankle disability, a different VA examiner linked the conditions and provided a thorough rationale. The Board will resolve all reasonable doubt in favor of the Veteran and the claim of entitlement to service connection for a lumbar spine disorder is granted. 38 U.S.C.A. § 5107 (West 2002). ORDER Entitlement to service connection for a lumbar spine disorder is granted. REMAND The Veteran was afforded a VA examination in November 2011. At this examination it was unclear whether the Veteran had a left ankle disability. The examiner referenced an x-ray which was unremarkable and showed no evidence of fracture or degenerative changes. However, the examiner also referenced that the Veteran had been diagnosed with degenerative changes in 1975. In a January 2013 medical opinion the examiner referenced June 8, 2012 x-rays of the left ankle which also showed no degenerative changes or fractures. These records are not in the claims file. Accordingly, the Veteran should be afforded a new VA examination to determine if he has a left ankle disability that was caused or aggravated by his service-connected right ankle disability. As for the Veteran's TDIU claim, the Court has held that all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). As the outcome of the Veteran's TDIU claim is impacted by the disability rating assigned to the Veteran's service-connected lumbar spine disorder and whether service connection is granted for a left ankle disability, the TDIU claim is considered to be inextricably intertwined with the lumbar spine and left ankle claims on appeal. Consequently, the claim of entitlement to a TDIU rating must be remanded to the AOJ in accordance with Harris. The Agency of Original Jurisdiction (AOJ) should also make efforts to obtain all outstanding VA treatment records related to the Veteran's left ankle disability, to specifically include June 2012 x-rays. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding VA treatment records related to his left ankle disability, to include June 2012 x-rays. All information which is not duplicative of evidence already received should be associated with the claims file. If the AOJ is unable to obtain any of the relevant records sought, it shall notify the Veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 38 U.S.C. § 5103A(b)(2) (West 2002). 2. After completing the above, schedule the Veteran for a VA examination. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination. (a) The examiner must provide an opinion as to whether it is at least as likely as not (50% or greater probability) that any left ankle disability had its clinical onset during active service. (b) The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected right ankle disability either: i) Caused the Veteran's left ankle disability (if any) OR ii) Permanently worsened (aggravated) any current left ankle disability. The supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. 3. Ensure the opinion is responsive to this determinative issue of causation or provides sufficient explanation as to why it cannot be. If it is not, take any needed corrective action. See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 4.2. 4. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the Veteran's claims. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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). ______________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs