Citation Nr: 1623349 Decision Date: 06/10/16 Archive Date: 06/21/16 DOCKET NO. 09-43 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to the claimed lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to July 1980. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). The Veteran testified at a June 2015 Travel Board hearing. The hearing transcript is of record. The Board remanded the appeal in for additional development in July 2015. Unfortunately, an additional remand is necessary prior to adjudication of the appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board remanded the appeal in July 2015 for a VA examination and opinion to address the Veteran's claimed lumbar spine disability. While findings from the record were considered in the January 2016 VA opinion, the examiner did not provide clear reasoning for the opinion rendered. Instead, the VA examiner simply cited findings from the record, which included a June 1977 enlistment examination where the Veteran reported a history of recurrent back pain, evidence of a July 1992 work-related back injury, for which the Veteran was eventually awarded Worker's Compensation, and the examiner cited an August 2012 VA pain clinic evaluation, in which the Veteran indicated that he was trying to get workman's compensation pain medication through VA. While the VA examiner did not explain the significance of the cited evidence, the Board notes that the history of back pain noted at service entrance is not sufficient to rebut the presumption of soundness with regard to the presence of a chronic back disability, and the Veteran, in this case, is presumed to be sound at service entrance. See 38 C.F.R. § 3.304(b) (2015). The Board finds, additionally, that while a 1992 work-related injury to the lumbar spine is well documented, the VA examiner failed to discuss the significance of lumbar spine complaints and treatment shown in service. Accordingly, the Board finds that a remand for a supplemental medical opinion is necessary to address the claimed lumbar spine disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion"). The Board finds that service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to the claimed lumbar spine disability, is inextricably intertwined with the Veteran's lumbar spine claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). If the AOJ finds that service connection for a lumbar spine disability is warranted, a supplemental medical opinion addressing the issue of secondary service connection should be obtained prior to reconsideration of the Veteran's claims. Accordingly, the case is REMANDED for the following action: 1. The AOJ should refer the case to the January 2016 VA examiner (or other appropriate examiner) for a supplemental medical opinion to address the Veteran's lumbar spine disability. Another examination is not required. The record should be made available to the examiner for review. In the supplemental opinion, the VA examiner should restate his or her opinion as to whether it at least as likely as not (a 50 percent or greater probability) that a currently diagnosed lumbar spine disability began during service or is otherwise related to service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. The VA examiner should provide a rationale, or explanation of the reasons for his or her opinion, and should provide a discussion of the facts and medical principles involved. The VA examiner should note that the Veteran, in this case, is presumed to be sound at service entrance, and the examiner should specifically discuss the significance of lumbar spine complaints and treatment shown in service. 2. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the AOJ finds that service connection for a lumbar spine disability is warranted, a supplemental medical opinion addressing the issue of secondary service connection should be obtained prior to reconsideration of the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. If any benefit sought on appeal remains denied, the AOJ should furnish the Veteran and representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further 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 must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. PARAKKAL 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).