Citation Nr: 1549923 Decision Date: 11/25/15 Archive Date: 12/03/15 DOCKET NO. 09-06 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a left hip disability, to include as due to low back disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert Chisholm, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from April 1974 to April 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In August 2012, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. This case was previously before the Board in October 2012, when the claim of service connection for a low back disability was reopened and remanded for further development, to include providing the Veteran a VA examination and opinion. The matter was then before the Board in September 2014, and the examination and opinion obtained were found to be inadequate and the case was again remanded for an addendum opinion. Unfortunately, the examiner of record simply resubmitted the prior inadequate opinion verbatim, and the matter must now be remanded again to ensure compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board sincerely regrets the attendant additional delay in adjudicating these claims. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted above, this case was before the Board in September 2014, when it was remanded to obtain a new or addendum opinion regarding the Veteran's low back disability. In April 2015, the examiner of record submitted as his "addendum" opinion a verbatim copy of the prior opinion which the Board had found to be inadequate. This is unacceptable and a new examination and opinion performed by a different medical provider is necessary on remand. Such examiner should consider the Veteran's specific report of his medical history, both as provided at examination and as shown in the record, and the opinion provided should be reviewed for adequacy before the matter is returned to the Board. The Board notes that the issue of service connection for a left hip disability as a result of low back disability was previously remanded as inextricably intertwined with the claim of service connection for a low back disability. Circumstances with respect to that claim have not changed. The Board also notes the communications from the Veteran's attorney in November 2015 making an apparently repeated request for a copy of a VA examination which was said to have been performed in September 2015. This examination is not currently incorporated in the Veteran's electronic claims file. A copy of the examination in question, if such was performed, must be added to the electronic claims file on remand, and a printed copy should be provided to the Veteran's attorney as well. If a VA examination was performed in September 2015 but the written report has been lost or is otherwise unavailable, a new VA examination must be provided for the Veteran. Finally, the Board notes that the September 2014 remand included the issue of entitlement to TDIU, to include on an extraschedular basis, as raised by reports that the Veteran's inability to work for the past several years is due to his service-connected cervical spine disability. Although the remand directives included requesting that the Veteran complete a formal application for TDIU, the Board's jurisdiction was vested by virtue of the filing of an increased rating claim, see Rice v. Shinseki 22 Vet. App. 447 (2009), and the lack of a formal claim did not terminate VA's responsibility to adjudicate the claim. A VA examination and opinion as to employability are needed, although such should occur after the completion of the adjudication of the low back disability claim, as it would necessarily affect the opinion rendered. If the examination which may have been performed in September 2015 pertained to the Veteran's employability, an additional examination may be required once an opinion has been received with respect to the low back disability. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination by an examiner other than the one consulted in January 2013 to determine whether it is at least as likely as not (probability 50 percent or greater) that his current low back disability was incurred in or otherwise resulted from the low back injury received in the 1977 motor vehicle accident in service. The examiner is instructed that the Veteran is considered competent to provide a medical history of his treatment and symptoms since service, regardless of whether contemporaneous medical records are found in the claims file. Should the examiner have reason to discount any of the Veteran's statements, such reasons should be explicitly stated in the opinion provided. The examiner should review and comment on the significance, if any, of the records showing treatment for low back pain in service and since service separation, as well as the Veteran's statements regarding his low back pain at hearing in 2012. The examiner should include in the report an opinion regarding whether the specific incidents of low back pain shown in 1986 and 2003 constitute separate causes of disability and whether any aspect of the current disability is or could be traceable to service, regardless of these incidents. The examiner must provide a statement of the rationale for any opinions rendered. A copy of the claims file should be provided to the examiner for review. 2. After the examination report has been submitted, the RO/AMC should review it for adequacy. If the examination supports the claim of service connection for low back disability, an examination and/or opinion should be obtained with respect to the Veteran's left hip disability claim and whether such was caused or aggravated by the low back disability. 3. Once all preceding development is complete, a VA examination and opinion should be obtained to address the question of whether it is at least as likely as not (probability 50 percent or greater) that the Veteran's service connected disabilities (cervical spine disabilities and peripheral neuropathy, as well as low back and hip disabilities if shown to be service connected by the examinations discussed above) prevent him from obtaining and maintaining reasonably gainful employment. 4. The RO/AMC should then readjudicate the issues on appeal. If the benefits sought on appeal are not granted in full, the RO/AMC must issue a supplemental statement of the case (SSOC) and provide the Veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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 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 2014). _________________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).