Citation Nr: 1330468 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 08-23 153A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an adjustment disorder with depression, including as secondary to a service-connected low back disability, right hip disability, and/or right ankle disability. 2. Entitlement to service connection for a cervical spine disorder, including as secondary to the service-connected low back disability, right hip disability, and/or right ankle disability. 3. Entitlement to service connection for idiopathic polyneuropathy of the right leg and right hip, including as secondary to the service-connected low back disability, right hip disability, and/or right ankle disability. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to May 1976. He appealed to the Board of Veterans' Appeals (Board/BVA) from August 2007 and December 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a February 2012 decision since issued, the Board granted his claim of entitlement to service connection for a right hip disorder as secondary to his service-connected right ankle disability. In that same decision, however, the Board denied his claims for service connection for cervical spine and right shoulder disorders, including as secondary to his service-connected right ankle disability. In addition, the Board remanded his remaining claims for service connection for an adjustment disorder with depressed mood and for idiopathic polyneuropathy of his right leg, both to include as secondary to the service-connected right ankle disability, and the claim for a TDIU because these other claims needed to be further developed before being decided on appeal. Since, at the time, the Veteran was represented by a Veterans Service Organization (VSO) - namely, the Disabled American Veterans (DAV), the remand of those other claims to the RO was by way of the Appeals Management Center (AMC). The AMC implemented the Board's grant of service connection for the right hip disorder in a decision later in February 2012, assigning an initial 10 percent rating for consequent limitation of flexion of the right thigh and an initial 0 percent (i.e., noncompensable) rating for consequent limitation of extension of the right thigh, with both ratings retroactively effective from January 30, 2007. Meanwhile, the Veteran appealed the Board's February 2012 decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC), to the extent it instead had denied his claim of entitlement to service connection for a cervical spine disorder, including as secondary to his service-connected right ankle disability. A private attorney, rather than the DAV, represented him in his appeal to the Court. The Veteran's private attorney and VA's Office of General Counsel, representing the Secretary, filed a Joint Motion in October 2012 asking the Court to partially vacate the Board's decision, to the extent it had denied this claim of entitlement to service connection for a cervical spine disorder, including as secondary to the service-connected right ankle disability. The parties also requested that the Court not disturb the portion of the Board's decision denying entitlement to service connection for a right shoulder disorder, including as secondary to the service-connected right ankle disability, since the Veteran was abandoning any appeal as concerning that other claim. Moreover, the parties did not wish to disturb the portion of the Board decision granting entitlement to service connection for a right hip disorder as secondary to the service-connected right ankle disability. And since the Board had remanded, rather than decided, the remaining claims for service connection for an adjustment disorder with depressed mood and for idiopathic polyneuropathy of the right leg, both including as secondary to the service-connected right ankle disability, and the claim for a TDIU, these remaining claims also were not before the Court. The Court in response issued an Order later in October 2012 resultantly vacating the part of the Board's February 2012 decision that had denied the claim of entitlement to service connection for a cervical spine disorder, including as secondary to the service-connected right ankle disability. The Court remanded this claim for further development (specifically, for another VA compensation examination and opinion since an October 2008 VA compensation examiner only had commented on whether the service-connected right ankle disability had caused the cervical spine disorder, concluding it had not and was most-likely instead age-related, without also commenting on the additional possibility of whether the service-connected right ankle disability alternatively had aggravated the cervical spine disorder). Since abandoned, however, the Court dismissed the remaining claim of entitlement to service connection for a right shoulder disorder. Since the Board received the file back from the Court for the further development of the cervical spine disorder claim mentioned, the Veteran's attorney has submitted additional argument in August 2013. He maintained this claim not only should be considered on the premise the cervical spine disorder is secondary to the service-connected right ankle disability, but also on the premise it is secondary to other service-connected disabilities, as well, in particular the low back (lumbar spine) and right hip disabilities. So the Board is expanding this claim to include this additional consideration. The Board also will provide the same expanded consideration of the claims for service connection for an adjustment disorder with depression and for idiopathic polyneuropathy of the right leg and right hip. Also in this additional August 2013 argument, aside from needing to remand the claim for the cervical spine disorder for the additional VA compensation examination and supplemental medical opinion mentioned, the Veteran's attorney requested a remand of all of the remaining claims still at issue, also, and to the RO rather than, as previously, to the AMC, because the Veteran is now represented in this appeal by him, instead of the DAV, and since he has not had opportunity to respond appropriately to the most recent Supplemental Statement of the Case (SSOC) that was issued in July 2013 continuing to deny these remaining claims. He therefore cited what amounted to denial of procedural due process. Since, however, the Board finds there is an approximate balance of evidence for and against the claim of entitlement to service connection for the Veteran's depressive disorder, the Board is going ahead and deciding - indeed granting - this claim. There is no possibility of unduly prejudicing the Veteran in this preemptive action since this claim is being granted in full rather than denied in whole or in part. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993). Whereas, as requested, the Board instead is remanding the remaining claims of entitlement to service connection for the cervical spine disorder and idiopathic polyneuropathy of the right leg and right hip, and for a TDIU. Also in his August 2013 argument the private attorney pointed out that, in the Board's prior February 2012 decision, the Board had noted that the issue of entitlement to service connection for sleep apnea, as secondary to narcotics used to treat service-connected disabilities, had been raised by the record but had not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Notably, in a March 2011 statement, the Veteran had maintained that he was experiencing sleep apnea as a result of the narcotics he used to control the pain caused by his numerous disabilities, including service-connected disabilities. Thus, because the Board did not have jurisdiction over this additional claim, the Board referred it to the AOJ for appropriate action. However, as the Veteran's private attorney observed, there is no indication there has been the required consideration of this additional claim. So the Board is again referring this additional claim to the AOJ (RO) for all appropriate development and consideration. FINDING OF FACT The probative (competent and credible) evidence is in relative equipoise as to whether the Veteran's depressive disorder was at least partly caused or is being exacerbated by his service-connected low back, right hip, and right ankle disabilities. CONCLUSION OF LAW When resolving all reasonable doubt in his favor, the Veteran's depressive disorder is partly secondary to his service-connected low back, right hip, and right ankle disabilities. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Since the Board is granting this claim of entitlement to service connection for depressive disorder as secondary to the service-connected low back, right hip, and right ankle disabilities, there is no need to discuss whether there has been compliance with the VCAA's duty-to-notify-and-assist obligations because this is ultimately inconsequential. II. Governing Statutes, Regulations and Case Law Service connection is granted on a direct-incurrence basis for disability directly resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). It also may be presumed that certain conditions, including notably psychoses, were incurred in service if manifested to a minimum compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection is permissible as well on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also, 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, he prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). III. Factual Background In a September 1976 rating action, the RO granted service connection for postoperative open reduction fracture of the right ankle with traumatic arthritis and a cyst of the right lateral malleolus. In a private medical statement from B.R.C., M.D., dated in January 2007, Dr. C. stated that he was treating the Veteran for severe degenerative disc and joint disease of the lumbar spine, lumbar radiculopathy, and lumbar stenosis. According to Dr. C., he treated the Veteran with Fentanyl transdermal patches and morphine sulfate for breakthrough pain, including back pain and right hip pain. In October 2006, a spinal cord stimulator was placed into the Veteran's spine to help him with his chronic low back, hip, and leg pain. In an August 2007 rating action, the RO granted service connection for lumbar spinal stenosis with neurogenic claudication. In May 2008, through a statement from his wife, the Veteran raised the claim of entitlement to service connection for depression as secondary to his service-connected low back and right ankle disabilities. Due to his low back and right ankle disabilities, he experienced constant pain that caused him to be depressed. VA Medical Center (VAMC) outpatient treatment records show that from October 2007 to September 2008 the Veteran received intermittent treatment at the pain clinic. In December 2007, it was indicated he took medication for depression. In October 2008, the Veteran underwent a VA psychiatric evaluation. He stated that he had experienced some depressive symptoms since August 2005 when he lost his job due to health conditions. He indicated that he had to stop working because he could not sit or stand for long periods of time. He reported that chronic pain impacted his mood. The examiner noted the Veteran took an anti-depressant. Following the mental status evaluation, the diagnoses were: (Axis I) adjustment disorder with depressed mood, (Axis IV) loss of employment, lifestyle changes, economic stress, chronic pain, and (Axis V) Global Assessment of Functioning (GAF) score of 70. A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." The GAF score and interpretation of that score are important considerations in rating a psychiatric disability. See Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). The examiner opined that the Veteran's depression was not caused by or a result of his service-connected right ankle disability. The examiner stated there was no objective data to make this link or form this relationship as to secondary service connection. The Veteran had reported mild depressive symptoms that were multifactorial in etiology and were mainly related to lifestyle and economic changes on account of his unemployment. He was not in psychiatric treatment and reported that his medication was prescribed by other medical providers in the context of his treatment for medical conditions. In October 2009, the Veteran submitted a private medical treatment record, dated in May 2005. In the record, it was noted the Veteran was evaluated by R.C., M.D., of Psychiatric and Psychological Care. Dr. R.C. stated the Veteran's Family Medical Leave Act (FMLA) had run out and that he was going to apply for long-term disability. He experienced severe pain in his back. The impression was major depressive disorder, recurrent, mild and improving. However, Dr. R.C. indicated the Veteran's depression appeared to have plateaued not due to unresponsiveness to medications but secondary to underlying chronic back pain. According to Dr. R.C., if the pain was relieved, most likely the depression would improve. Other private medical records instead dated from September 2009 to March 2010 show that, in September 2009, it was noted the Veteran had been referred by VA for individual counseling for anxiety and depressive symptoms. It was reported that he had chronic pain. In February 2010 it was indicated that, according to him, his back pain had worsened and he felt very depressed mostly related to the pain. As already mentioned, the Board granted service connection for a right hip disorder in its February 2012 decision, and the AMC implemented that grant very shortly thereafter (the following day), assigning an initial 10 percent rating for consequent limitation of flexion of the right thigh and an initial 0 percent (noncompensable) rating for consequent limitation of extension of the right thigh, with both ratings retroactively effective from January 30, 2007. So the AMC, in effect, compartmentalized the right hip disorder into two separate disabilities given the resultant impairment. A VA psychiatric evaluation was performed the month after that, so in March 2012. The Veteran stated that he had worked for a utility company for 19 years and as a power trader (bought and sold electricity) for 10 years. He noted that he had retired in 2005 because of his low back disability; since he experienced chronic low back pain, he could not focus on his job. The examiner indicated the Veteran had been receiving mental health treatment at the Jacksonville, Florida, VAMC since 2011. He was prescribed Wellbutrin, Xanax, and Zoloft. According to the Veteran, the medications were not helping him. However, the examiner noted that, according to the most recent VAMC outpatient treatment record, dated in February 2012, it was reported that the Veteran's symptoms had been well-controlled since his last appointment in November 2011. Following the then current mental status evaluation, the examiner diagnosed: (Axis I) depressive disorder, NOS, cognitive disorder NOS; (Axis IV) unemployed, financial stress, recent family stress; and (Axis V) GAF score of 70. The examiner opined that it was less likely than not the Veteran's depressive disorder was the result of his service-connected right ankle disability. The examiner indicated he concurred with the October 2008 VA examiner's opinion that the Veteran's depression was multifactorial in nature. In addition to the reported chronic pain, the contributing factors included unemployment, financial stress, cognitive deficits, family stressors, and a history of alcohol dependence. IV. Analysis As already alluded to, the Veteran maintains that because of the chronic pain he experiences from his service-connected low back, right hip, and right ankle disabilities, especially in combination, he gets depressed. Thus, his claim is entirely predicated on the notion that his depression is secondary to these service-connected disabilities and, in particular, their combined effect. After reviewing the relevant evidence of record, the Board finds that the probative (competent and credible) evidence is in relative balance for and against the claim on this determinative issue, indicating these service-connected disabilities are at least partly the source of his depression, even if not entirely. Moreover, because the Board is granting the claim on this alleged secondary basis, there is no need to additionally discuss whether direct and presumptive service connection are warranted. With respect to the Veteran's claim on a secondary basis, the Board recognizes that, in the reports of the October 2008 and March 2012 VA psychiatric evaluations, the examiners concluded the Veteran's depressive disorder was unrelated to his service-connected right ankle disability. However, they both also acknowledged that his depressive disorder had a "multifactorial" etiology that included chronic pain. The general reference to "chronic pain" clearly encompassed the pain attributable not only to the Veteran's service-connected right ankle disability, but also to his service-connected low back and right hip disabilities since the other records in the file are replete with repeated references to persistent pain in these areas of his body. The evidence of record shows intermittent treatment for chronic pain due to these aforementioned service-connected disabilities. Therefore, by opining that chronic pain was at least a contributing factor in the Veteran's depressive disorder, the examiners were essentially linking his depressive disorder at least partly to the pain he experiences because of his service-connected low back, right hip, and right ankle disabilities. Even though there were other contributing factors for his depressive disorder, such as his unemployment, the fact remains that one of the contributing factors was his chronic pain. And although he may experience pain in equal measure because of disabilities that are not service connected (at least at the moment), he also very evidently experiences pain as well due to his service-connected low back, right hip, and right ankle disabilities. Moreover, he has cited the pain associated with his service-connected disabilities as the reason he could not continue working, resultantly having to retire, and reason he since has filed the derivative TDIU claim. So even those examiners citing his unemployment and consequent financial and family stress as other contributing factors in his depression was not to the exclusion of these service-connected disabilities because they, too, are shown to contribute to these other unfortunate circumstances in his life. The Board also points out that, in the October 2009 private medical record, Dr. R.C. diagnosed depressive disorder and etiologically linked it to the Veteran's underlying chronic back pain. According to Dr. C., if the Veteran's back pain was relieved, then most likely his depression would improve. This medical opinion supports the Veteran's claim because it establishes the required cause-and-effect correlation between the pain associated with his service-connected low back disability and his problems with depression. And even though this doctor's opinion concedes the depression likely would improve with lessening or abatement of the pain, this more so concerns the disability ratings that should be assigned for the chronic pain and consequent depression, not instead whether they are proportionately related. In reading all of these opinions together, what emerges is positive and negative evidence that is in relative equipoise as to whether the Veteran's depressive disorder was caused or, at the very least, is being worsened by the pain partly associated with his service-connected low back, right hip, and right ankle disabilities. Thus, with application of the benefit-of-the-doubt doctrine, service connection for the depressive disorder, as secondary to the service-connected low back, right hip, and right ankle disabilities, is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a) and (b). See also Alemany v. Brown, 9 Vet. App. 518, 519 (1995) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to service connection, nor is "definite" or "obvious" etiology). Rather, in this circumstance, this posited correlation only needs to be as likely as not, which in this instance, for the reasons and bases discussed, it is. At the conclusion of the October 2008 VA examination, the Veteran also was diagnosed with adjustment disorder. However, in light of the fact that the Board is granting service connection for depressive disorder, and both adjustment disorder and depressive disorder are rated according to the General Rating Formula for Mental Disorders (38 C.F.R. § 4.130, Diagnostic Codes 9201-9440), a separate discussion as to his adjustment disorder is unnecessary. See DSM-IV; 38 C.F.R. §§ 4.125, 4.130 (2013); see also Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009) (regarding whether separate ratings would ever be warranted for variously diagnosed psychiatric disabilities). ORDER The claim of entitlement to service connection for a depressive disorder, as secondary to the service-connected low back, right hip, and right ankle disabilities, is granted. REMAND As for the Veteran's claim of entitlement to service connection for a cervical spine disorder, in the October 2012 Joint Motion for Partial Remand, the parties noted that, in the February 2012 decision, the Board had determined that service connection was unwarranted for this claimed cervical spine disorder because the preponderance of the evidence was against finding that the Veteran's cervical spine disorder was etiologically related to his period of active service, including by way of his service-connected right ankle disability. As part of that decision, the Board had made the factual finding that the most probative medical and other evidence of record indicated the Veteran's cervical spine disorder was not caused by and not aggravated by his service-connected right ankle disability. The Board's finding was primarily based on an October 2008 VA examination report wherein the examiner had opined that the Veteran's cervical spine disorder was not "caused by, a result of, or aggravated by his service-connected right ankle disability." However, although that examiner had rendered an etiological opinion that the cervical spine disorder was not directly caused by the Veteran's service-connected right ankle disability, that examiner did not provide a rationale for his opinion that the cervical spine disorder was not aggravated by the right ankle disability. The examiner, instead, had merely stated that the cervical spine disorder was most likely related to age and did not provide a rationale for his opinion that the cervical spine disorder was not aggravated by the right ankle disability. Two opinions are required for secondary service connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b). But even if arguably that examiner also indicated the service-connected right ankle disability, not only did not cause, but also had not alternatively aggravated the cervical spine disorder, he still has to provide the required explanatory rationale, which he unfortunately did not, since this more than anything else is where most of the probative value of an opinion is derived. See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion is not entitled to any weight if it contains only data and conclusions). And see Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated, and "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). Thus, the parties agreed that the Board's finding of fact that the Veteran's cervical spine disorder was not related to his service-connected right ankle disability was not properly based upon medical evidence of record. Consequently, a remand of this claim was required so the Board could provide the Veteran another VA compensation examination for a supplemental medical opinion adequately addressing this aggravation issue. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for 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). In regards to the Veteran's claim of entitlement to service connection for idiopathic polyneuropathy of his right leg and right hip, he maintains that due to the pain he experiences from his service-connected low back, right hip, and right ankle disabilities, he developed idiopathic polyneuropathy of his right leg and right hip. In the alternative, he contends that the pain that he experiences from his low back, right hip, and right ankle disabilities aggravates his idiopathic polyneuropathy of his right leg and right hip. So this claim also is predicated on the notion of secondary service connection. Pursuant to the Board's prior February 2012 remand, the Veteran underwent a VA compensation examination concerning this claim in March 2012. The examiner stated that the physical examination had revealed findings of a polyneuropathy of both lower extremities with decrease pin prick in a stocking distribution of both legs and decrease vibration of the knees. According to the examiner, the etiology of the Veteran's idiopathic polyneuropathy was unknown, which was the case for a significant percentage of patients with polyneuropathy. The examiner nonetheless concluded there was absolutely no relationship between the Veteran's polyneuropathy and his service-connected back, hip or ankle conditions, either from a causation or aggravation standpoint. However, the examiner did not provide any explanatory rationale for his opinion. Thus, this claim must be remanded for essentially the same reason as the claim for a cervical spine disorder, that being, for an addendum to the prior opinion. See 38 C.F.R. § 3.159. Regarding the Veteran's derivative claim of entitlement to a TDIU, a TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. However, disabilities resulting from common etiology or single accident, or affecting both upper or lower extremities, including with consideration of the bilateral factor, are considered as one collective disability for the purpose of determining whether these threshold minimum rating requirements are met. Id. Also following and as a result of the Board's prior February 2012 remand, in March 2012 the Veteran had a VA compensation examination that was pertinent to his service-connected low back disability. Following the physical examination, the examiner opined that the Veteran's service-connected low back, right hip, and right ankle disabilities would preclude sedentary or physical work. The Veteran's thoracolumbar spine condition, with markedly reduced range of motion and severe pain, combined with his right ankle disability and right hip disability would make a full-time work situation impossible for him. Those conditions made him unable to sit for prolonged periods or stand for even a short period of time. He had to lay in a recliner for part of the day and change positions frequently to keep his pain in a tolerable range. In addition, his medication (gabapentin, fentanyl) and pain made it difficult for him to focus and concentrate as well. The examiner stated that he did not see a work position that would allow the Veteran to sustain a 40-hour work week on a regular basis. Thus, the examiner concluded the Veteran could not obtain and maintain substantially gainful employment. As of April 2013, the Veteran's service-connected disabilities were as follows: lumbar spinal stenosis with neurogenic claudication (20-percent disabling); right ankle disability (10-percent disabling); limitation of flexion of the right thigh (10-percent disabling); and limitation of extension of the right thigh (0-percent disabling, i.e., noncompensable). The combined service-connected disability rating was 40 percent from January 30, 2007. Thus, because the Veteran did not satisfy the threshold minimum percentage rating requirements for a TDIU under 38 C.F.R. § 4.16(a), the RO sent a letter to Director of the Compensation Service regarding whether the Veteran should be granted a TDIU on an alternative extra-schedular basis under the special provisions of 38 C.F.R. § 4.16(b). The RO noted that the Veteran had last worked in February 2005 for the Energy Authority. He had stopped working due to disability and was receiving disability benefits from the Social Security Administration (SSA). He had completed high school. The RO recommended that his claim be granted, seemingly based on the March 2012 VA compensation examiner's favorable opinion. However, in the return response, the Director of the Compensation Service stated his office did not concur with the RO's recommendation. According to the Director, the evidence did not demonstrate that the Veteran was unemployable solely due to his service-connected disabilities. In the most recent VA examination in March 2012, range-of-motion testing of his lumbar spine had showed that he could move in all directions. The Director indicated that objective findings on that examination did not support his contention that he was unemployable solely due to his service-connected disabilities. In this decision the Board has granted service connection additionally for the Veteran's depressive disorder. Thus, considering that he now has another service-connected disability, another medical opinion is needed concerning whether his service-connected disabilities, when also considering this additional one, preclude him from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. See Friscia v. Brown, 7 Vet. App. 294 (1995). Lastly, the Veteran's attorney has requested copies of the March 2012 VA examination reports, the March 2013 VA examination note (addendum), and the Memorandum from the Director of the Compensation Service regarding the extra-schedular decision. As of the time of his most recent August 2013 letter, he still had not received copies of this requested evidence and, therefore, could not make appropriate argument in response. This needs to be accomplished and any other assistance due him so he in turn may provide proper representation of the Veteran. Moreover, he cited the RO's need to adjudicate the previously referred claim of entitlement to service connection for chemical/narcotic-induced sleep apnea as additional reason to temporarily delay any further consideration or adjudication of the remaining claims since this additionally claimed condition also, if eventually determined to be a service-connected disability, would have to be considered in determining the Veteran's alleged derivative entitlement to a TDIU. Accordingly, these remaining claims are again REMANDED for the following additional development and consideration: 1. Provide the Veteran's attorney any and all assistance due him, to specifically include sending him copies of the March 2012 VA examination reports, the March 2013 VA examination note (addendum), and the Memorandum from the Director of the Compensation Service regarding the extra-schedular decision, including especially the referral for consideration of a TDIU on this special basis, dated in April 2013. *Give the Veteran's attorney time to submit additional evidence and/or argument in response to this evidence. 2. Thereafter, make arrangements with the appropriate VA medical facility for the Veteran to be provided the following examinations: (A) A VA orthopedic/neurological examination to ascertain whether his cervical spine disorder and/or idiopathic polyneuropathy of his right leg and right hip was caused and/or is being aggravated by his service-connected low back, right hip, and/or right ankle disabilities. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All appropriate tests and studies should be accomplished, and all clinical findings reported in detail. After a review of the examination findings and the relevant evidence of record, the examiner must address the following questions: (i) What is the likelihood (very likely, as likely as not, or unlikely) the Veteran's cervical spine disorder, currently diagnosed as osteoarthritis of the cervical spine, AND/OR his idiopathic polyneuropathy of his right leg and right hip, was caused by his service-connected low back, right hip, and/or right ankle disabilities? (ii) Alternatively, what is the likelihood (very likely, as likely as not, or unlikely) the Veteran's cervical spine disorder, currently diagnosed as osteoarthritis of the cervical spine, AND/OR idiopathic polyneuropathy of his right leg and right hip, were aggravated by his service-connected low back, right hip, and/or right ankle disabilities? The examiner is advised that the term "as likely as not" means at least 50-percent probability. This term does not however mean merely within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation and/or aggravation as to find against it. Very likely and as likely as not support the contention that the Veteran's cervical spine disorder and/or idiopathic polyneuropathy of his right leg and right hip were caused and/or aggravated by his service-connected low back, right hip, and/or right ankle disabilities, whereas a conclusion that it is unlikely obviously instead weighs against his claim. The examiner must be certain to comment on both causation AND aggravation. The examiner is also informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a mere temporary or intermittent flare-up of symptoms. If aggravation is found, the clinician should indicate, to the extent possible, the approximate level of baseline disability preceding the aggravation. It is most essential the examiner discuss the underlying medical rationale of the opinion, regardless of whether it is favorable or unfavorable to the claim, if necessary citing to specific evidence in the file supporting conclusions (B) An appropriate VA examination to determine the likelihood (very likely, as likely as not, or unlikely) that the Veteran's service-connected disabilities render him unable to obtain or maintain a substantially gainful occupation. At present, his service-connected disabilities are: (1) lumbar spinal stenosis with neurogenic claudication, (2) postoperative residuals of an open reduction fracture of the right ankle with a cyst of the right lateral alveolus with traumatic arthritis, (3) right hip disability characterized as limitation of flexion of the right thigh and limitation of extension of the right thigh, and (4) a depressive disorder. The term "as likely as not" means at least 50-percent probability. This term does not however mean merely within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. "Very likely" and "as likely as not" support the claim, whereas "unlikely" obviously instead weighs against the claim. The claims folder must be made available to the examiner for review in conjunction with this additional examination. The examiner must review all of the relevant evidence of record, but must specifically recognize that the Veteran stopped working in 2005 primarily because of his low back disability. In a May 2008 letter from the Veteran's former employer, it was confirmed that his job had required him to sit for prolonged periods of time. And because of his medical condition, he was unable to do that and consequently could not perform the essential duties of his position. The examiner should also consider the prior March 2012 VA examiner's findings that the Veteran's thoracolumbar spine condition, with markedly reduced range of motion and severe pain, combined with his right ankle disability and right hip disability would make a full-time work situation impossible for him. Those conditions made him unable to sit for prolonged periods or stand for even a short period of time. He had to lay in a recliner for part of the day and change positions frequently to keep his pain in a tolerable range. In addition, his medication (gabapentin, fentanyl) and pain made it difficult for him to focus and concentrate as well. That prior examiner stated that he did not see a work position that would allow the Veteran to sustain a 40-hour work week on a regular basis. Thus, that examiner concluded the Veteran could not obtain and maintain substantially gainful employment. The term unemployable means incapable of obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison when considering the Veteran's level of education, prior work experience and training. It is most essential the VA examiner discuss the underlying medical rationale of the opinion, if necessary citing to specific evidence in the file supporting conclusions. If, as an example, the examiner believes sedentary employment is still a viable possibility, even if a physically-demanding job perhaps is not, then he/she needs to consider this in the context of the Veteran's individual situation and circumstances. 3. After completion of the above and any other development deemed necessary, readjudicate these remaining claims of entitlement to service connection for a cervical spine disorder and for idiopathic polyneuropathy of the right leg and right hip, both claims including as secondary to the service-connected low back, right hip, and/or right ankle disabilities. (Also adjudicate the referred claim of entitlement to chemical/narcotic-induced sleep apnea) and, once all of this is done, readjudicate the TDIU claim that derives from all of these other claims. If this adjudication and readjudication of these claims does not resolve each claim to the Veteran's satisfaction, provide the Veteran and his attorney an SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of any remaining claim. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs