Citation Nr: 1330635 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 09-43 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to a service-connected disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1979 to January 1983 and from January 1984 to January 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2006 and March 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board's January 2012 remand addressed the issue of entitlement to service connection for a bilateral foot disability. On remand, the RO granted service connection for bilateral calcaneal spurs, also claimed as bilateral foot condition, in a January 2013 rating decision, which represented a total grant of benefits sought on appeal for that issue. As such, that issue is considered resolved in full and is no longer on appeal. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In October 2012, the Board remanded the Veteran's claim of service connection for a low back disability for a supplemental medical opinion after finding that the medical opinion provided by the November 2007 VA examiner, in an August 2008 addendum, was not adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). This opinion only concluded that the Veteran's low back disability was less likely as not caused by his service-connected conditions but did not address whether the Veteran's current low back disability was aggravated by one or more of his service-connected disabilities. To that effect, VA regulations provide under section 38 C.F.R. § 3.310(a) that service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Pursuant to the Board's October 2012 remand, another addendum was obtained in December 2012 wherein the examiner opined that "the nature and etiology of low back disorder (in this case) are more likely caused by normal aging process due to his usual job (truck driver transporting and carrying cargo and unloading the trucks) and not from service connected conditions." This opinion still does not address the issue of aggravation. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268, 271 (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure compliance). Therefore, another remand is required. As an appealed claim for service connection has not yet been adjudicated, the Board cannot adjudicate the claim for a TDIU and it must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless all issues have been considered). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records from the VAMC in San Juan, Puerto Rico and any associated outpatient clinics dated from November 2007 to the present. All records and/or responses received should be associated with the claims file. 2. Forward the claims file to the November 2007 VA examiner (or if unavailable, other appropriate medical practitioner) for a supplemental opinion. A copy of this Remand and the entire claims file must be made available to and reviewed by the VA examiner. Pertinent documents should be reviewed, including service treatment records and the Veteran's statements. The examiner should then offer an opinion as to whether the Veteran's low back disability is at least as likely as not (i.e. 50 percent probability or more) either proximately caused by or aggravated by one or more of his service-connected disabilities. Aggravation is defined as permanent worsening beyond the natural progression of the disease. A complete rationale must be provided for any opinions expressed. 3. After completing the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).