Citation Nr: 1338807 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 07-32 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for thoracolumbar degenerative disc disease and disc herniations, to include as due to low back strain disorder. 2. Entitlement to a disability rating in excess of 40 percent for low back strain disorder. 3. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from June 1988 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2006 and November 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Regarding the claim of entitlement to service connection for thoracolumbar degenerative disc disease and disc herniations, when the Board last reviewed the case in February 2013, it noted the Veteran underwent a VA examination in September 2011 that resulted in a diagnosis of lumbar disc degeneration. The examiner stated that the Veteran's degenerative disc disease was not caused or aggravated by the service-connected low back strain; however, he did not provide any rationale for such opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, the case was remanded in order for the September 2011 VA examiner to provide a thorough rationale for any opinion provided as to whether the Veteran's current thoracolumbar degenerative disc disease and disc herniations were caused or aggravated by the service-connected low back strain. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The report of a February 2013 addendum opinion shows the VA examiner reviewed the September 2011 VA examination report, as well as the claims file. The examiner stated that the Veteran's current degenerative disc disease and disc herniations were not caused or aggravated by the service-connected low back strain. In providing this opinion, the examiner in significant part, noted that the Veteran's degenerative disc disease or radicular symptoms were not present until several years after discharge from active service. He further noted that such conditions were also not present during active service. The Board finds the February 2013 addendum opinion inadequate for rating purposes. The VA examiner provided a negative opinion with respect to whether the Veteran's current thoracolumbar degenerative disc disease and disc herniations were caused or aggravated by the service-connected low back strain; however, the Board finds the rationale for such opinion inadequate. Specifically, the rationale is supportive of a negative opinion that addresses direct service connection; however, it is not supportive of a negative opinion that addresses secondary service connection. Accordingly, another VA opinion is necessary to make a determination in this case. Barr, 21 Vet. App. at 311. In February 2013, the Veteran submitted an Authorization and Consent form requesting the RO to obtain private treatment records pertaining to his increased rating and service connection claims from Rosemeyer Chiropractic, dated from December 2012 to the present. In a March 2013 letter, the RO requested these records; however, there is no indication of record that Rosemeyer Chiropractic responded to such request and the records identified by the Veteran are not of record. In this regard, the RO failed to inform the Veteran that VA was unable to obtain the records; failed to provide an explanation of the efforts made by VA to obtain the records; failed to provide a description of any further action that VA would take regarding the claim; and failed to notify the Veteran that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e) (2013). Therefore, the RO must attempt to obtain the Veteran's private treatment records from Rosemeyer Chiropractic dated in December 2012 to the present, and associate them with the record. 38 C.F.R. § 3.159(c)(1). If the RO is unable to obtain such records, the Veteran must be notified. 38 C.F.R. § 3.159(e). In addition, as the Veteran appears to receive ongoing treatment from the VA Medical Center in Madison, Wisconsin, the RO must also obtain VA outpatient treatment records from such facility from August 2011 to the present. 38 C.F.R. § 3.159(c)(2). As the issues currently on appeal are inextricably intertwined, appellate consideration of the remaining issues must be deferred. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (finding that two or more issues are inextricably intertwined if one claim could have significant impact on the other). As there has not been substantial compliance with the February 2013 remand directives, the case must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Regardless of the Veteran's response, the RO must obtain the Veteran's private treatment records from Rosemeyer Chiropractic dated in December 2012 to the present, as well as ongoing VA outpatient treatment records from the VA Medical Center in Madison, Wisconsin, from August 2011 to the present. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. The claims file and all electronic records must be made available to the September 2011 VA examiner, and the examiner must specify in the examination report that these records have been reviewed. If the examiner who conducted the September 2011 VA examination is unavailable, an appropriate VA examiner must be directed to provide the supplemental finding to the September 2011 VA examination. If the VA examiner determines another examination is necessary to provide the finding, an examination must be scheduled. Following review of the service and post-service medical records, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether any currently or previously diagnosed thoracolumbar spine disorder (to include degenerative disc disease and herniated discs), other than the Veteran's service-connected low back strain is due to or aggravated by his service-connected low back strain. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. The medical report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 4. After completing the above actions, the RO must readjudicate the Veteran's claims, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If any benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).