Citation Nr: 1414927 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 09-22 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for obesity, to include as secondary to a service-connected low back disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island dated in September 2008 and November 2009. The Veteran testified at a videoconference hearing before the Board in December 2011. The Board denied the Veteran's claims in a March 2012 decision. The Veteran filed an appeal to the United States Court of Appeals for Veterans Claims. In a July 2013 Memorandum Decision, the March 2012 Board decision was vacated and the Veteran's claims were remanded to the Board for additional development. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND In the Memorandum Decision, the Court held that the Board did not provide adequate reasons and bases for a determination that a medical examination was not warranted with regard to the claim for obesity. The Court held that the Board applied the proper analysis in denying entitlement to a TDIU, but noted that the claim for TDIU could be impacted by the claim for obesity and required remand. A review of the claims file does not show that the Veteran has undergone a VA examination to determine the etiology of the claimed obesity and whether there is a disability present. In initial service connection claims, VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 C.F.R. § 3.159(c) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that a VA examination is needed to ascertain the etiology of the claimed disability manifested by obesity. The claim for TDIU is inextricably intertwined with the pending claim for service connection for obesity. The appropriate remedy where a pending claim is inextricably intertwined with claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). VA outpatient treatment reports dated through April 2012 are of record and VA outpatient treatment reports dated from July 2013 to December 2013 were most recently associated with the claims file. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claims, an attempt to obtain those records should be made. 38 C.F.R. § 3.159(c)(2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any VA treatment records dated from April 2012 to July 2013 and any records dated since December 2013. Any other relevant records identified by the Veteran should also be associated with the claims file. Any negative responses for the records requests should be associated with the claims file. 2. Schedule the Veteran for a VA examination with the appropriate examiner to determine the etiology of any disability resulting in obesity. The examiner must review the claims file and must note that review in the report. The report of examination should include a complete rationale for all opinions expressed. Any necessary tests should be obtained. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a disability manifested by obesity. If a disability manifested by obesity is shown, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that a disability manifested by obesity was caused or aggravated by a service-connected low back disability. The examiner should also opine as to whether the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disabilities including a lumbar spine disability, coronary artery disease, hypertension, tinnitus, and bilateral hearing loss. 3. Then, readjudicate the claims. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ HARVEY P. ROBERTS 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).