Citation Nr: 1335685 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-28 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for right hip disability, to include as secondary to service-connected lumbar spine degenerative disc disease and lumbar strain. 2. Entitlement to a total rating based on individual unemployability. REPRESENTATION The Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Pflugner, Sean G., Counsel INTRODUCTION The Veteran served on active duty from August 1979 to August 1982 and from December 1990 to May 1991, with additional service in the Army Reserve and the Florida Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. The issue of entitlement to service connection for right hip disability was previously before the Board in November 2009 and August 2011. On both occasions, the Board remanded the claim for additional development. After an August 2013 supplemental statement of the case, the RO returned the right hip service connection claim to the Board for further appellate review. In the August 2011 decision, the Board determined that the evidence of record reasonably raised the issue of entitlement to a total rating based on individual unemployability (TDIU) and that said claim was within its jurisdiction. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the Veteran's TDIU claim for additional development and adjudication contemporaneous to the service connection claim for right hip disability. In August 2013, the RO adjudicated the claim, and then effectively returned it to the Board for appellate review. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the August 2011 remand, the Board directed the RO to obtain a supplemental opinion from a June 2010 VA examiner as to whether any present right hip disability was causally or etiologically related to the Veteran's active duty. In July 2013, the June 2010 VA examiner reviewed the relevant evidence in the Veteran's claims file and provided a diagnosis of mild degenerative joint disease of the right hip that was "less likely as not causally or etiologically related to the Veteran's active service." In support of this opinion, the examiner provided the following rationale: There is no objective evidence of a hip condition onset in active duty or within two years of active duty. The service record is silent for a hip complaint, abnormal exam[ination], or diagnosis. There is no objective evidence of trauma in service to have resulted in a hip condition later in life. The July 2013 supplemental opinion was predicated on the Veteran's service and post-service treatment records, or lack thereof (referred to by the examiner as "objective evidence"). However, during a September 2009 Board hearing, the Veteran effectively asserted that he incurred right hip disability as a result of the same inservice injury that resulted in his lumbar spine degenerative disc disease and lumbar strain for which service connection was subsequently granted. There was no indication that the examiner considered this or any of the Veteran's lay assertions or lay evidence of record in rendering the opinion and, thus, the Board finds that the July 2013 supplemental opinion is not adequate for purposes of adjudicating the Veteran's claim. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of inservice injury, but relied on the service treatment records to provide a negative opinion). Consequently, a remand to obtain another opinion from a VA examiner is required in order to satisfy VA's duty to assist. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that, once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided.). The Board finds that the claim of entitlement to TDIU is inextricably intertwined with the issue of entitlement to service connection for right hip disability, to include as secondary to service-connected lumbar spine degenerative disc disease and lumbar strain. All issues "inextricably intertwined" with the issue certified for appeal, are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). The issue of entitlement to TDIU is intertwined with the issue of entitlement to service connection for right hip disability, to include as secondary to service-connected lumbar spine degenerative disc disease and lumbar strain, because a decision on the latter claim may have an impact on the former claim. See 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). Consequently, the claim of entitlement to TDIU must be remanded for contemporaneous adjudication. Additionally, as discussed in the Introduction, in the August 2011 decision, the Board determined that the issue of entitlement to TDIU was within its jurisdiction and, thus, found that appellate review was appropriate. The Board remanded the TDIU claim for development, including providing the Veteran with notice, and adjudication in the first instance. If the benefit sought was denied, the Board directed the RO to issue the Veteran and his representative a supplemental statement of the case before returning the claim to the Board. While in remand status, the RO developed the TDIU claim, including providing him adequate notice. The RO then issued an August 2013 rating decision wherein the claim of entitlement to TDIU was denied. The Veteran's TDIU claim was not subsequently addressed in a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance). As such, the Board finds that that a remand is also warranted in order for the RO to re-adjudicate the Veteran's TDIU and, if the benefit remains denied, issue the Veteran a supplemental statement of the case wherein the issue is addressed. The Board also finds that the Veteran should be provided a VA examination pursuant to his claim of entitlement to TDIU in order to obtain an opinion as to whether he is unable to secure or follow substantially gainful employment due to his service-connected disabilities. See Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination, but may choose to do so in an appropriate case); Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the evidence of record contains insufficient information for evaluation purposes). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the June 2010 VA examiner (who also rendered the July 2013 supplemental opinion) in order to obtain another supplemental opinion. A copy of this remand and the Veteran's claims file must be made available to and reviewed by the examiner. Such review must be documented in the report of the opinion rendered. Thereafter, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any present right hip disability was incurred in or due to the Veteran's active duty OR was caused or aggravated by his service-connected lumbar spine degenerative disc disease and lumbar strain. In so doing, the examiner must specifically consider and discuss the Veteran's lay statements as to inservice incurrence on onset of symptoms. For purposes of this analysis, "aggravation" is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather 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. A complete explanation, including any medical principles that apply to the facts and medical issue(s) at hand, must be given for all opinions and conclusions expressed. If an opinion cannot be made without resort to mere speculation, this must also be fully explained. 2. If the June 2010 VA examiner is not available to provide the requested supplemental opinion, the Veteran must be provided a new VA examination wherein the directives contained in paragraph #1 are fully addressed. 3. The RO must then make arrangements with the appropriate VA medical facility for the Veteran to undergo an examination. After a review of the entire evidence of record, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran is unable to secure and follow substantially gainful employment consistent with his education and occupational experience due to all of his service-connected disabilities, irrespective of age and any nonservice-connected disabilities. At present service-connection has been granted for lumbar spine degenerative disc disease and lumbar strain, rated as 40 percent disabling, and posttraumatic stress disorder, rated as 30 percent disabling. A complete rationale for any opinion must be provided. A complete explanation, including any medical principles that apply to the facts and medical issue(s) at hand, must be given for all opinions and conclusions expressed. If an opinion cannot be made without resort to mere speculation, this must also be fully explained. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather 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. 4. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be re-adjudicated. If any benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review, if otherwise in order. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ L. M. BARNARD Acting 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).