Citation Nr: 1334633 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 08-24 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a left hip disability, to include as secondary to degenerative disc disease of the lumbar spine. 2. Entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her husband ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1986 to May 1987. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which, in part, denied the Veteran's claim of entitlement to service connection for a left hip disability and a TDIU, and granted service connection for degenerative disc disease of the lumbar spine and assigned a 20 percent disability evaluation. In March 2011, the Veteran presented testimony in a central office hearing before a Veterans Law Judge who is no longer employed by the Board; and a copy of that transcript has been associated with the claims folder. In a July 2012 letter, the Veteran was apprised of this situation and was given the opportunity to have another hearing before another Veterans Law Judge. In an August 2012 response, the Veteran indicated that she did not wish to have another hearing. In June 2011, the Board remanded this matter for further development which has been completed, and the case has been returned to the Board for appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board finds that additional development is warranted in this case before a decision may be rendered. In the June 2011 remand, the Board instructed the AMC to obtain treatment records from Dr. G.M.M. Pursuant to the Board's remand and the AMC's July 2011 letter enclosing VA Form 21-4142, Authorization and Consent to Release Information, and specifically requesting Dr. G.M.M's records, the Veteran submitted a letter dated July 2012 from Dr. G.M.M. who stated that "[p]rior records may be in archives." Aside from this letter, there are no other records from Dr. G.M.M. associated with the claims folder, or any indication that additional efforts were made to obtain these records. On remand, with any necessary assistance from the Veteran, the AMC should attempt to obtain Dr. G.M.M.'s records. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In addition, treatment records from J.A.B., M.D., dated in March 2004 indicate that the Veteran had a workers compensation claim related to her back. These records should also be obtained. Moreover, as the Social Security Administration did not provide the medical records underlying its disability determination, the records should again be requested. As to the claim for a left hip disability, the Board specifically instructed the AMC to obtain an examination report addressing whether the Veteran's current left hip disability was related to service or was secondary to a service-connected lumbar spine disability. Subsequently, the Veteran was afforded an examination in June 2011 and an addendum report was rendered in April 2012. Neither the June 2011 examination nor April 2012 addendum reports addressed whether the Veteran's left hip disability was related to service. See id. Additionally, in the April 2012 addendum report, the VA examiner indicated that it was less likely than not that the Veteran's hip pain due to bursitis was secondary to her lumbar spine disability. However, the examiner did not address whether the lumbar spine disability aggravated the left hip disability. With regard to the claim for an increased evaluation for the lumbar spine disability, the Board notes that during the March 2011 hearing the Veteran's representative pointed out that it appeared to him that the May 2010 VA examination report showed that the Veteran was additionally impaired following repetitive range of motion but that the examiner indicated that she was not. In this vein, the Board notes that the Veteran was last examined for her spine in May 2010, over three and half years ago. On remand, she should be provided an updated examination to determine the current severity of her lumbar spine disability, and to specifically taken into account any additional limitations following repetitive range of motion testing. Finally, the Board notes that the service connection and increased rating claims currently on appeal are part and parcel of the claim for a TDIU, and as such these claims are inextricably intertwined. Accordingly, the issue of entitlement to a TDIU must be held in abeyance pending adjudication of the other two claims currently on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain all outstanding treatment records from Dr. G.M.M. In addition, the Veteran should be asked to identify any relevant records not already of record which pertain to her claims, including workers compensation records. All efforts to obtain these records must be documented in the claims files/electronic file. If the RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claims; and (d) notify the Veteran that she is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A (b) (2) (West 2002); 38 C.F.R. § 3.159(e) (1) (2013). 2. Request, directly from the Social Security Administration, copies of any readjudication on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that she is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Obtain a VA medical opinion regarding the etiology of her left hip disability, to include ascertaining the relationship, if any, between the Veteran's current disability and service-connected lumbar spine disability. The claims file and a copy of this remand must be made available to and be reviewed by the clinician in conjunction with the examination. The examination report must indicate that the claims file was reviewed. The clinician should opine whether it is at least as likely as not (50 percent or greater probability) that the current left hip disability is related to a period of active service. The clinician should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current left hip disability was due to the Veteran's lumbar spine disability. Also, is there a 50 percent probability or greater that the Veteran's current left hip disability was aggravated (i.e., worsened beyond the natural progress) by the Veteran's lumbar spine disability. If the clinician determines that a left hip disability is aggravated by the lumbar spine disability, the clinician should report the baseline level of severity of the left hip disability prior to the onset of aggravation and the increased manifestations which, in the clinician's opinion, are proximately due to the lumbar spine disability. The clinician should provide a rationale for any opinion rendered. The examiner should discuss the October 2008 letter from Dr. S.M.H. If it is determined that another examination is necessary to provide the requested information, then one should be scheduled. If the examiner is unable to offer a requested opinion, it is essential that the clinician offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 4. Schedule the Veteran for a VA spine examination to determine the current nature and severity of her lumbar spine disability. The Veteran's claims files must be made available for review by the examiner. The examiner should describe in detail all symptoms reasonably attributable to the service-connected lumbar spine disability and its current severity, including orthopedic symptomatology and neurologic symptoms. (i). The examiner should record pertinent medical complaints, symptoms, and clinical findings, including ranges of motion in degrees. (ii). The examiner should also set forth the extent of any functional loss present for the service-connected lumbar spine disability due to weakened movement, excess fatigability, incoordination, or pain on use. The degree of functional impairment should be described in adequate detail. Any additional impairment on use or in connection with any flare-up should be described, if possible, in terms of the degree of additional range-of-motion loss. (iii). The examiner should also address whether there is any associated objective neurological impairment associated with the service-connected lumbar spine disability, other than the already service-connected left lower extremity radiculopathy. (iv). The examiner should also indicate the effect the service-connected lumbar spine disability has, if any, on the Veteran's employment. A complete rationale should accompany all opinions. Also, the examiner's conclusions should reflect review of the claims folder. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 5. After completing the requested actions, and any additional notification and/or development warranted, readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and afford an appropriate time period for response before the appeal is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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. 2013). _________________________________________________ S.S. Toth 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) (2013).