Citation Nr: 1416071 Decision Date: 04/10/14 Archive Date: 04/24/14 DOCKET NO. 06-38 193 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a back disability, claimed as secondary to service-connected bilateral ankle disabilities. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran served on active duty from December 1978 to November 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2006 and October 2008 rating decisions of the RO. In August 2008, a local hearing was held before a Decision Review Officer (DRO); however, the transcript of this hearing was lost. The Veteran was notified of the loss in April 2009, and he was given 30 days to request another hearing. The Veteran did not respond; therefore, it is assumed he did not want another DRO hearing. In September 2009, a Board hearing was held before the undersigned Veterans Law Judge at the RO; a complete transcript of this hearing is associated with the claims file. In a July 2010 decision, the Board denied entitlement to service connection for several disabilities, including a back disability, and entitlement to a TDIU. The Veteran appealed the Board's July 2010 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 Memorandum Decision, the Court vacated the portion of the Board decision that denied entitlement to service connection for a back disability and entitlement to a TDIU and remanded the issues to the Board for further development and readjudication consisted with the Memorandum Decision. The Board remanded the claim of service connection for a back disability and entitlement to a TDIU in November 2012. The case returns for appellate consideration. The appeal is REMANDED to the RO. REMAND The Board remanded in November 2012 for a VA examination and opinion as to whether the Veteran's back disability was at least as likely as not related to service or related to service-connected bilateral ankle disabilities. The Veteran was seen for a December 2012 VA examination. The examiner, a physician's assistant, entered a discussion into the examination report comprised of service treatment records and VA treatment records. Opinions were offered, but rationales were not. Addendum opinions were obtained in April and June 2013, but these did not provide rationales for the secondary service connection opinions. A medical opinion that contains only data and conclusions is accorded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran's representative argues, and the Board agrees, that the November 2012 VA examination report and the April and June 2013 addenda are not adequate for ratings purposes. The Board must remand again for an adequate VA examination and opinions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The TDIU claim is deferred as it is inextricably intertwined with the service connection issue. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA orthopedic examination with a physician for a diagnosis of all disabilities of the lumbar, thoracic, and cervical spine. The examiner should expressly consider the cervical, thoracic and lumbar spine individually. The examiner is to examine the Veteran, review all pertinent documents in the claims file, and obtain a thorough medical history from the Veteran and, as to each disability diagnosed, the examiner is to opine whether it is at least as likely as not (50 percent or greater likelihood) that each disability diagnosed had its onset in service or is otherwise related to service. The examiner should also state an opinion as to whether it at least as likely as not (50 percent probability or greater) that each diagnosed back disability was either caused by or aggravated by (permanently worsened beyond the normal progress of the disorder) his service-connected bilateral ankle disabilities. Note: The term "at least as likely as not" does not mean merely 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 causation as it is to find against it. A rationale should be given for all opinions and conclusions expressed in a typewritten report. If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the issues of service connection for a back disability, claimed as secondary to service connected bilateral ankle disabilities and entitlement to TDIU should be readjudicated in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case and should afford the Veteran and his representative the appropriate time period for response. 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). The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2013). 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). _________________________________________________ K.J. ALIBRANDO 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).