Citation Nr: 1338243 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 11-03 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to a compensable rating for status post fractured coccyx. 3. Entitlement to an initial disability rating in excess of 10 percent for a right hip strain. 4. Entitlement to an initial disability rating in excess of 10 percent for a left hip strain. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Karl A. Kazmierczak, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from May 1986 to February 1997. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2013, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of the hearing is of record. The Veteran submitted additional evidence at the hearing and waived his right to initial consideration of this evidence by the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2013) (referral is not necessary where the Veteran waives his right to initial consideration of evidence by the AOJ). At the hearing, the Veteran was also granted a 30-day abeyance period for the submission of additional evidence to support his claims. That period of time has lapsed, and no additional evidence has been received. Hence, the claim will be considered on the basis of the current record. The issues of entitlement to increased ratings for right and left hip strains and a TDIU are REMANDED to the RO. FINDINGS OF FACT 1. At his July 2013 Travel Board hearing, prior to promulgation of a decision by the Board, the Veteran withdrew his appeal regarding an increased rating for status post fractured coccyx. 2. The evidence is at least in relative equipoise on the question of whether the Veteran's lumbar spine disability was incurred in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's Substantive Appeal regarding an increased rating for status post fractured coccyx have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). 2. The criteria for establishing service connection for lumbar spine disability, to include lumbar degenerative disc disease, lumbar spondylosis, and lumbar radiculopathy, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating for Status Post Fractured Coccyx At his July 2013 Travel Board hearing, the Veteran stated that he wished to withdraw his appeal regarding an increased rating for status post fractured coccyx. Hearing Transcript (Tr.) at 2. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing or at a Board hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. The Veteran has properly withdrawn his appeal seeking an increased rating for status post fractured coccyx. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. II. Service Connection for a Lumbar Spine Disability In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran asserts that his current lumbar spine disability was incurred in or is otherwise related to service. Specifically, he claims that he injured his lumbar spine when he fell and fractured his coccyx in August 1992 and that this injury went undiagnosed until he reinjured it during civilian employment in September 2006. For the reasons discussed below, the Board finds that entitlement to service connection for a lumbar spine disability is warranted. Generally, in order to establish direct service connection, three elements must be established. There must be evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). In this case, the Veteran has established that he has a current disability, the first element of service connection. In October 2006, magnetic resonance imaging (MRI) showed evidence of a small broad-based disc protrusion at the L4-L5 level that was thought to slightly displace the right L5 nerve root. A more recent August 2010 MRI also showed mild narrowing of the right lateral recess and foramen and the potential for mild impingement of the right L4 nerve root. In October 2010, a private physician, Dr. C.B., diagnosed the Veteran with lumbar degenerative disc disease, lumbar spondylosis, and lumbar radiculopathy. The Veteran has also established the incurrence of an in-service injury or disease, the second element of service connection. His service treatment records show that he fell two or three feet and fractured his tailbone (coccyx) in August 1992. It was noted that his back was tender at the sacrum, distally and in midline. There was also moderate midline swelling. X-rays of the sacrum and coccyx showed fracture and displacement of the distal coccyx. X-rays of the lumbar spine were not taken. The Veteran was placed on a temporary profile for about 30 days. At his discharge examination in January 1997, the Veteran reported that he still experienced occasional pain when sitting for more than two to three hours and he was advised to follow-up with a physician. The clinical evaluation indicated that his spine was normal and that he had full range of motion with no weakness or deformity of the spine. The remaining question is whether the Veteran's current lumbar spine disability was incurred during or is otherwise related to the in-service injury. The Board acknowledges that there is conflicting evidence regarding the question of nexus in this case; however, the Board finds that evidence for and against the claim is in at least relative equipoise. Therefore, reasonable doubt is resolved in the Veteran's favor on the question of nexus. The evidence against the Veteran's claim consists of the April 2010 VA examiner's opinion and the questionable involvement of a September 2006 work-related injury. According to a September 2006 treatment record from Tinker Air Force Base (AFB), the Veteran was climbing onto a cabinet to get a panel from an airplane and as he stretched out, he experienced sudden soreness in his low back. The next morning he woke up with severe, sharp low back pain. He denied back problems in the past, but reported that he had a history of coccygeal fracture in 1992. The April 2010 VA examiner opined that the Veteran's current lumbar spine disability was not secondary to the fractured coccyx and was likely secondary to the back injury in 2006. He did not provide any rationale for this opinion and did not indicate whether the in-service injury could have resulted in lumbar spine disability that went undiagnosed until 2006. The examiner did opine, however, that the Veteran's service-connected residuals of a coccyx fracture, including bilateral hip strain, aggravated the lumbar spine disability. Parenthetically, the Board notes that the AOJ did not address entitlement to service connection based on aggravation by a service-connected disability. See 38 C.F.R. § 3.310 (2013). While secondary service connection may have provided another basis for entitlement, for reasons discussed below, the Board finds that service connection is warranted on a direct basis and therefore will not discuss the question of aggravation. The evidence in support of the Veteran's claim consists of Dr. H.C.J.'s September 2009 opinion and Dr. T.L.M.'s November 2010 opinion. The Board has also considered the Veteran's lay statements, testimony, and arguments and those presented on his behalf by his attorney in support of his claim. In a September 2009 letter, Dr. H.C.J., a private orthopedic and spine specialist, who treated the Veteran after the 2006 injury, stated that the Veteran was being treated for intravertebral disc disorder and coccygeosacral injury, which occurred in August of 1992. He opined that "[t]hese problems contribute to his present lumbosacral and lumbar degenerative joint disease." The Board notes that this opinion is competent and at least somewhat probative. Although the physician did not provide a rationale for his opinion, the Board notes that he specializes in orthopedic surgery and therefore has additional expertise in this area. The VA examiner, on the other hand, specializes in family medicine and presumably has less expertise. In November 2011, Dr. T.L.M., a private Board-certified osteopath, reviewed and discussed the Veteran's relevant medical history, including his service medical records and those records related to the 2006 injury. He opined that "the injuries, impairments and disabilities set forth in my diagnosis and computation of service connected disability were, as likely as not, due to and a consequence of this veteran's military service." The physician indicated that his opinion was "based upon my examination of the veteran, review of medical and/or service records, my education training and experience and upon reasonable probability and reasonable medical certainty." While perhaps not the most articulate opinion, it is clearly competent evidence in support of the Veteran's claim. Although the physician did not provide a detailed rationale for his opinion, he did review and discuss the relevant medical evidence. Therefore, the Board finds the opinion at least somewhat probative. In this case, the Board concludes that the VA examiner's opinion and the private physicians' opinions are all competent and at least somewhat probative. Under these circumstances, the private physician's opinions, along with the Veteran's lay statements and testimony, permit application of the reasonable doubt doctrine as the evidence for and against the claim is in relative equipoise. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for a lumbar spine disability, to include lumbar degenerative disc disease, lumbar spondylosis, and lumbar radiculopathy, are met. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a lumbar spine disability, to include lumbar degenerative disc disease, lumbar spondylosis, and lumbar radiculopathy, is granted. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claims of entitlement to increased ratings and a TDIU. See 38 C.F.R. § 19.9 (2013). I. VA Examination During the Board hearing, the Veteran testified that his right and left hip disabilities have worsened since his VA examination in November 2010. Hearing Tr. at 14. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (Apr. 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). Therefore, a more contemporaneous VA examination is necessary for the purpose of ascertaining the current severity of the Veteran's service-connected right and left hip disabilities. II. Treatment Records During the Board hearing, the Veteran testified that he received treatment from Dr. E. and Dr. J. Hearing Tr. at 3. He also said that he was supposed to have electromyography (EMG) conducted by Dr. S., but that an appointment was not yet scheduled. While this case is in remand status, an attempt should be made to obtain any outstanding, pertinent treatment records. III. TDIU At his Board hearing and in various written statements, the Veteran has alleged that he is no longer able to work because of his service-connected disabilities. See Hearing Tr. at 9. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 454. This matter warrants additional development and adjudication on appeal and is inextricably intertwined with the evaluation claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following actions: 1. Any outstanding, pertinent private and/or VA treatment records should be obtained and incorporated in the claims folder. Specifically, this should include any treatment records from Dr. E., Dr. J., and Dr. S (See Hearing Tr. at 3). The Veteran should be requested to sign the necessary authorization for release of any private medical records to VA. All attempts to procure such records must be documented in the file. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After the development outlined in Item (1) is completed, schedule the Veteran for an examination to determine the current nature and severity of his service-connected right and left hip strains. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA or VBMS eFolder) should be made available to and be reviewed by the examiner in conjunction with the examination. A report of the examination should be prepared and associated with the Veteran's VA claims file. 3. Thereafter, and after undertaking any additional development deemed necessary (including any development needed regarding entitlement to TDIU), readjudicate the issues remaining on appeal, including entitlement to TDIU. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his attorney with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further 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). (CONTINUED ON NEXT PAGE) The claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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). ______________________________________________ M. SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs