Citation Nr: 1603347 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 13-27 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a neck disability, to include as secondary to the service-connected disability of right hand laceration injury residuals (major). 2. Entitlement to service connection for a back injury, to include as secondary to the service-connected disability of right hand laceration injury residuals (major). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). WITNESSES AT HEARING ON APPEAL The Veteran; Z.H. ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to December 1976, with subsequent active service in the Army National Guard from June 13, 1987 to September 19, 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2015, the Veteran and his spouse testified at a hearing held at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's claims file. The Veteran is unrepresented. The Veteran was formerly represented by the Texas Veterans Commission (TVC) and later by the Disabled American Veterans (DAV). See VA Form 21-22 of January 2010 (TVC); VA Form 21-22 of May 2011 (DAV). A September 2015 letter from the DAV stated that the Veteran revoked DAV representation on July 14, 2015 and that "DAV is no longer his representative per the veteran's request." VA informed the Veteran by a letter of September 2015 that he had "90 days from the date of this letter or until the Board issues a decision in your appeal (whichever comes first) to request a change in representation . . .." Furthermore, in December 2015, VA notified the Veteran that he had the right to appoint a representative, that action on his case would be delayed for 30 days, and that VA would assume that the Veteran wished to represent himself if he did not respond within 30 days of the date of the letter. Because no VA Form 21-22 or VA Form 21-22a was submitted within 30 days (or thereafter), the Veteran is not represented. The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system folder. This appeal was processed using the Veterans Benefits Management System (VBMS). Any future consideration of the Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for a back disability and a neck disability, to include as secondary to his service-connected right hand disability. He also seeks entitlement to increased compensation based on individual unemployability (TDIU). See Veteran's filings of June 2010 and April 2013. The Veteran alleges that "due to the injury to my right hand I have had to do all my lifting with my left hand and my back went out." See Veteran's statement of May 2011. He states that his back injury is "due to me not being able to use my right hand." Id. He further alleges that his neck has also been injured as a result of his service-connected right hand disability. See transcript of August 2015 Board hearing. He describes a specific incident in which his need to favor his right hand while lifting pipes in a post-service, manual labor job threw him off balance and injured his neck and back. Id. In August 2011, a VA disability benefits questionnaire (DBQ) evaluated the Veteran's back disability. A negative nexus opinion was given as to service connection on both a direct and a secondary basis; the examiner found that the Veteran's "current back condition is less likely as not related to military or his right hand injury." The entire stated rationale was: "There is nothing in his SMRs about a back condition. He was seen 1-94 for a workmans comp case for back condition. . . . His right hand injury is anatomically not related to his back." When providing a VA examination or obtaining a VA opinion, VA must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. See 38 C.F.R. § 4.2 (2015). The Board finds that the August 2011 DBQ was not based upon complete facts and is inadequate. Additional development is required for an appellate decision. See Daves v. Nicholson, 21 Vet. App. 46, 51 (2007); Bowling v. Principi, 15 Vet. App. 1, 12 (2001). A disability can be service-connected on a secondary basis if proximately due to, or the result of, a service-connected condition. See 38 C.F.R. § 3.310(a) (2015). The August 2011 VA medical opinion is inadequate because the examiner's report and rationale do not show that consideration was given to the Veteran's account of how he injured his back. Specifically, the examiner appears to have not considered that the Veteran's notice of disagreement of May 2011 specifically alleged "service connection for back injury, to include as due to over-use due [to] his service-connected right hand injury." Accordingly, the Board will remand for a medical opinion as to the likelihood of secondary service connection. The August 2011 examiner also did not offer an opinion as to whether the Veteran's back disability is aggravated by his service-connected right hand disability. If a nonservice-connected disorder is aggravated by a service-connected disorder, a claimant is entitled to compensation for the degree of increased disability above the degree of disability existing in the absence of the aggravation. See 38 C.F.R. § 3.310(b) (2015); Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Therefore the Board will order medical opinion as to the matter of aggravation. The Veteran has not been afforded a VA medical examination to assess the nature and etiology of his claimed neck disability. A diagnosis of "multilevel degenerative disc disease at C-3-C4, C4-C5 and C6-C7" is of record. See VA treatment record of June 2011. There is currently no medical opinion of record as to the likelihood that the Veteran's degenerative disc disease of the cervical spine is related to an in-service injury or to this service-connected right hand disability. VA's duty to assist the veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). In this regard, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4)(i) (2015); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds record evidence that meets the McLendon standard for determining that a VA examination is necessary. The Veteran has been diagnosed with "multilevel degenerative disc disease" of the cervical spine. See VA treatment record of June 2011. While there is no record of an in-service neck injury, the Veteran credibly alleges that his service connected right hand injury has resulted in injury to his neck. The Board notes that the Veteran is competent to attest to experiencing back pain and neck pain and other experienced symptoms of these injuries. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran, as a layperson, is not competent to make complex medical conclusions, he is competent to report the circumstances in which experienced symptoms of back and neck injuries. Thus, there is an indication in the record that the Veteran's diagnosed neck disability may be associated with his service-connected disability of the right hand. Under the circumstances, a VA medical examination is necessary. See 38 C.F.R. § 3.159(c)(4) (2015); McLendon, 20 Vet. App. at 83. The Board further notes that a service treatment record of March 1988 made an x-ray finding of "mild dextroscoliosis of the mid thoracic spine." Although the medical record did not do so, the RO characterized this condition as "congenital." See rating decision of August 2010. A congenital or developmental defect is not considered a disease or injury for VA purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2015). A congenital defect, as distinguished from a disease, generally may not be service-connected as a matter of law. Furthermore, the general presumption of soundness upon entry into service, as set forth in 38 C.F.R. § 3.304(b), does not apply to congenital defects. Service connection may be granted, however, if a congenital defect is subject to, or aggravated by, a superimposed disease or injury during service that causes additional disability. See 38 U.S.C.A. §§ 1110, 1111 (West 2014); VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); Quirin v. Shinseki, 22 Vet. App. 390 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996). The Board determines that further medical inquiry as to this aspect of the Veteran's condition is required. It also appears that the Veteran is in receipt of Social Security Administration (SSA) disability benefits for his back and neck. See transcript of August 2015 Board hearing; SSA questionnaire of October 2014; Texas Rehabilitation Commission letter of November 1990, received by VA in January 1991. As SSA records may be relevant to the issues of service connection for a back disability and a neck disability, a remand is also necessary to obtain any outstanding SSA records relating to the claims. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Baker v. West, 11 Vet. App. 163, 169 (1998). In addition, a review of the Veteran's electronic claims folder reflects that complete workers' compensation injury records may not be of record. See Texas Workers' Compensation Commission medical report received by VA in January 2002. Because such records may contain information relevant to the Veteran's VA disability claims, they should be requested and associated with the Veteran's claims file. The Veteran also seeks a total disability rating based on individual unemployability due to service-connected disabilities. See Veteran's claim of June 2010; TDIU claims filed in November 2012, April 2013, May 2014, and October 2014. In August 2010, the Veteran underwent a VA medical examination for the purpose of evaluating the extent to which the Veteran's service-connected right hand injury affects his ability to secure and maintain gainful employment. More recently, the Veteran alleges that he has not worked full-time since 2007. See Veteran's statement of October 2014. He also testified at the Board hearing that he "started to lose jobs" because of his disabilities and that he has had jobs in which he "just couldn't last." See transcript of August 2015 Board hearing. In light of the most recent employment history of the Veteran, the Board finds that a new VA medical opinion is needed with respect to the effect of his service-connected disability or disabilities on his occupational functioning. See 38 C.F.R. § 3.159(c)(4) (2015). Moreover, the claim of entitlement to TDIU is inextricably intertwined with the claims of entitlement to service connection for disabilities of the back and the neck. Development of the Veteran's service-connection claims may impact his entitlement to TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if one claim could have significant impact on the other). In conclusion, the Board determines that a remand is necessary in order for VA to attempt to secure any outstanding relevant records and to schedule a VA medical examination to determine the nature and etiology of the Veteran's back disability and neck disability, including any resulting occupational impairment. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records from August 2015 to the present and associate those records with the Veteran's claims folder. 2. Take appropriate steps to contact the Veteran and request that he provide, or authorize the release of, any outstanding treatment records that are relevant to the pending claims. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record. 3. Request that the Veteran provide, or authorize the release of, documents pertaining to all his workers compensation claim(s) relating to his neck and back. After obtaining any necessary authorization, attempt to obtain the workers compensation documents, including complete copies of associated medical reports, and associate them with the Veteran's claims folder 4. Obtain from the Social Security Administration, or other state agency administering disability benefits, the records relating to the Veteran's claim(s) for disability benefits as well as the medical records relied upon in considering that claim(s). Any negative search should be noted in the record and communicated to the Veteran. 5. Then, schedule the Veteran for an appropriate VA examination with a qualified examiner to determine the nature and etiology of the Veteran's back and neck disabilities. The claims folder and a copy of this remand must be made available to the examiner for review prior to examination. All appropriate clinical testing should be conducted. The examiner should consider the relevant record statements of the Veteran with respect to his current and past symptoms and any continuity of symptomatology since service. Based upon the examination and a review of the record, the examiner is asked to provide a current diagnosis and to respond to the following questions: a. Whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's back condition and/or neck condition is related to his military service. b. Whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's back condition and/or neck condition is due to, or caused by, his service-connected right hand disability. c. Whether it is at least as likely as not (i.e., at least a 50 percent probability that the Veteran's back condition and/or neck condition is aggravated by his service-connected right hand disability. "Aggravation" is an increase in the severity of the disability that is beyond natural progression. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's back and neck disabilities prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are due to the service-connected right hand injury 6. The examiner also should provide a medical opinion that addresses the following: a. Explain whether the Veteran's "mild dextroscoliosis of the mid thoracic spine" noted in the service treatment record of March 1988 is a congenital or developmental defect or disease. See March 1988 radiographic report of Brooke Army Medical Center. Note that a disease generally refers to a condition that is considered capable of improving or deteriorating, while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954). Please provide a complete explanation for the opinion. b. If it is a defect, explain whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that there was a superimposed injury or disease during a period of active duty that resulted in additional disability. Please provide a complete explanation for the opinion. c. If it is a disease, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that this disability pre-existed active service. Please provide a complete explanation for the opinion. d. If pre-existence is clear and unmistakable, the examiner must state whether it is clear and unmistakable (obvious, manifest, and undebatable) that a pre-existing back disability WAS NOT aggravated (i.e., permanently worsened) during military service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase during service was due to the natural progress of the disease. Please provide a complete explanation for the opinion. e. If a response to (c) or (d) was negative, and with respect to any other diagnosed back disorder, is it at least as likely as not (a probability of 50 percent or greater) that the disorder began in or is related to service. Please provide a complete explanation for the opinion. 7. The examiner is also asked to assess any functional impairment associated with the Veteran's service-connected disabilities of the right-hand, left shoulder, and left hand that may affect his ability to function and perform tasks in a work setting (and also provide a separate assessment of that question that includes the neck and back disabilities to those of the right hand, left shoulder and left hand, as service connection has not as yet been established for such neck and back disabilities). The examiner is asked to interview the Veteran as to his education, training, and work history. 8. A full rationale for any opinion expressed or conclusion reached is required. 9. The term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 10. After completing the above action and any other development deemed appropriate, readjudicate the claims. If the benefits sought on appeal are not granted, a supplemental statement of the case should be provided to the Veteran and his representative, if any. After the Veteran has had an adequate opportunity to respond, the case should be returned to the Board for appellate review The Veteran 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL A. PAPPAS 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).