Citation Nr: 1602289 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 01-02 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for a psychiatric condition as secondary to either a low back or cervical spine disability. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Sean A. Ravin, attorney ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In an October 2000 rating decision, the RO denied a petition to reopen a service connection claim for a low back disability. In a November 2002 decision, the Board reopened the claim and remanded for a medical examination. The Board also referred to the RO the issues of whether new and material evidence was submitted to reopen claims seeking service connection for cervical spine and psychiatric disabilities. In October 2005, the Board then denied the Veteran's low back disability claim. The Veteran appealed the Board's October 2005 decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2007 memorandum decision, the Court vacated the Board's denial of the low back disability claim and remanded the case for further action. The Board remanded the claim in January 2009 for further development in accordance with the directives in the Court's memorandum decision. Additionally, the Board referred the Veteran's cervical spine disability claim to the RO, as well as a claim for a total disability rating based on individual unemployability that the Board determined was raised by the record. In a November 2009 rating decision, the RO denied reopening the claims of service connection for cervical spine and psychiatric disabilities and also denied the Veteran's claim seeking entitlement to a TDIU. In a July 2013 decision, the Board reopened the Veteran's cervical spine and psychiatric disability claims but proceeded to deny both issues on the merits. The Board also denied the Veteran's claims of service connection for a low back disability and TDIU. The Veteran again appealed to the Court. In a December 2014 memorandum decision, the Court vacated the Board's July 2013 decision and remanded the case to the Board for further action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Additional development is needed before the Board can adjudicate the Veteran's claims. Low back and cervical spine Remand is needed to afford the Veteran comprehensive VA examinations for both his low back and cervical spine disabilities. Examiners are requested to provide opinions on the etiologies of the Veteran's claimed conditions that address the entirety of the medical record, as well as the Veteran's lay statements concerning the onset of his disabilities. The Veteran seeks entitlement to service connection for cervical and lumbar spine disabilities. He contends that his disabilities were caused by injuries sustained from repeated parachute jumps during active duty service. The Veteran's DD-214 shows that he was awarded the parachutist badge. Thus, it is credible that he performed repeated parachute jumps during service. The Veteran's available service treatment records are silent with regard to treatment or diagnoses related to either a lumbar or cervical spine disability. In his January 1968 Report of Medical History, the Veteran indicated a history of recurrent back pain. A notation by a medical professional characterized this pain as "insignificant." However, the Veteran's service treatment records do not provide any further information on the nature or extent of the Veteran's complaints of recurrent back pain. The Veteran has told medical examiners that he experienced several falls and traumas in service which affected both his lower back and cervical spine but did not seek treatment for fear that he would be reassigned to another type of work assignment. The record includes numerous medical opinions that do not take into account the entirety of the Veteran's medical history, which includes records documenting post-service lumbar spine injuries in 1983 and 1990, as well as medical records in which the Veteran reported the onset of neck pain around 1991, many years after discharge from service. Some of the opinions base negative opinions on the absence of treatment records both in service and for many years after service to conclude the Veteran's low back condition was not related to service, without any consideration of the Veteran's credibly reported lay statements explaining the absence of in-service treatment records for his low back and cervical spine conditions. On remand, the Veteran should be afforded a new VA examination and opinion which considers the Veteran's lay reports of in-service injuries to his neck and back that resulted from his duties as a paratrooper, as well as post-service medical evidence regarding his low back and cervical spine. In particular, the examiner should comment on post-service imaging reports of the Veteran's lumbar spines conducted around the time of his post-service work injuries in December 1983 and 1990 and explain whether the findings support the Veteran's contentions of having injured his spine in service. The examiner should also discuss medical evidence indicating the Veteran first began experiencing symptoms of neck pain around 1991, and address whether imaging reports of the cervical spine in August 1993 support the Veteran's contentions concerning the etiology of his cervical spine condition. Psychiatric condition and TDIU The Board notes that the Veteran is not currently service-connected for any disabilities. As the issues of entitlement to a psychiatric condition as secondary to either a lumbar or cervical spine disability and entitlement to a TDIU are inextricably intertwined with his service connection claims, adjudication of these issues will be deferred pending the development and adjudication of the service connection claims. See Harris v. Derwinski, 1 Vet. App. at 183 (1990). Translations In a footnote, the Court observed that it appears some, but not all, Spanish language documents that are included in the record have been translated into English. For example, there were medical records that were not included in the translated documents. In August 2015, after the case was returned to the Board, but prior to this remand, additional documents were sent for translation. An October 2015 response from the translator is included in the record. On remand, a copy of that correspondence should be forwarded to the Veteran and his representative. Accordingly, the case is REMANDED for the following action: 1. Forward a copy of the Board's August 2015 request for translation and the October 2015 response to the Veteran and his representative. See document titled "correspondence," receipt date November 5, 2015, on VBMS. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his low back and cervical spine conditions. The claims folder, including a copy of this remand, and all pertinent medical records should be made available for review by the examiner. The examiner should perform any diagnostic tests deemed necessary and elicit from the Veteran a complete history of his complaints of back and neck pain, including all medical treatment. Following a review of the record, and any necessary testing, the examiner should address the following questions: (a) It is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's diagnosed low back disability had its onset in service or is otherwise related to the Veteran's active duty service, to include the Veteran's reports of sustaining back injuries as a paratrooper? (b) It is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's diagnosed cervical spine disability had its onset in service or is otherwise related to the Veteran's active duty service, to include the Veteran's reports of sustaining back injuries as a paratrooper? The examiner asked to address in his opinions the Veteran's lay statements of sustaining injuries to his back and neck while in service that he did not report due to fears of being reassigned to a different job. The examiner should not base an opinion that is adverse to the Veteran's claim exclusively on the absence of medical records supporting the Veteran's contentions. The examiner should also specifically comment on post-service imaging reports of the Veteran's lumbar spine conducted around the time of his post-service work injuries to his lower back in December 1983 and 1990 and explain whether the findings support the Veteran's contentions of having injured his spine in service. The examiner should also discuss medical evidence indicating the Veteran first began experiencing symptoms of neck pain around 1991, and address whether imaging reports of the cervical spine in August 1993 support the Veteran's contentions concerning the etiology of his cervical spine condition. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner must resort to speculation to answer any question, he or she should so explain why a response would be speculative. 3. After the above actions and development have been completed, readjudicate the Veteran's claims in light of all the evidence of record. If any benefit sought is denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. 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). 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 2014). _________________________________________________ M. E. LARKIN 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).