Citation Nr: 1646109 Decision Date: 12/08/16 Archive Date: 12/21/16 DOCKET NO. 11-19 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for low back disability, other than chronic lumbar strain, to include as secondary to the lumbar strain. 2. Entitlement to service connection for a right leg disability, claimed as right leg neuropathy, to include as secondary to a low back disability. 3. Entitlement to service connection for residuals of cuts and bruises of the hands. 4. Entitlement to service connection for right index finger disability. REPRESENTATION The Veteran is represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to December 1988, with subsequent service in the Army Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In November 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Board's office in Washington, D.C.. A transcript of the hearing has been associated with the Veteran's electronic claims file. This appeal was before the Board in March 2015, at which time it was remanded for additional development. After the issuance of a November 2015 supplemental statement of the case, the appeal was remitted to the Board for further appellate action. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. REMAND Low Back Disability (other than Chronic Lumbar Strain) and Right Leg Disability In the March 2015 remand, the Board directed the RO or Appeals Management Center (AMC) to provide the Veteran with a VA examination in order to obtain an opinion from a VA examiner as to the nature of the Veteran's low back disability or disabilities and an opinion concerning the etiology of each disability. While his claim was in remand status, the Veteran underwent a VA examination in September 2015. After a review of the pertinent evidence and after administering a clinical evaluation, the examiner rendered diagnoses of chronic lumbar strain and lumbar spine degenerative disc disease. The examiner then provided a positive etiological opinion with respect to the Veteran's chronic lumbar strain, but rendered a negative etiological opinion as to whether the Veteran's degenerative disc disease is related to his active service. The AMC then issued a November 2015 rating decision wherein it granted service connection for chronic lumbar strain. Consequently, that disability is no longer at issue in this appeal. As discussed above, the September 2015 VA examiner rendered a negative etiological opinion with respect to whether the Veteran's lumbar spine degenerative disc disease is related to service. The September 2015 VA examiner was not asked and did not provide an opinion concerning whether the disability is secondary to the chronic lumbar strain. Consequently, the Board finds that a remand is required in order to obtain a supplemental opinion. The Veteran's claim of entitlement to service connection for a right leg disability is inextricably intertwined with his claim of entitlement to service connection for lumbar spine degenerative disc disease. As such, a remand is required for contemporaneous consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision in the matter). Hands and Right Index Finger In the March 2015 remand, the Board directed the RO or AMC to obtain a supplemental opinion from a May 2014 VA examiner. The Board specifically stated that the examiner should accept the Veteran's history as credible evidence of an in-service injury. However, in a September 2015 addendum, the examiner opined as follows: As noted in the blank template and opinion I did not find any [service treatment] records showing a finger condition in service. Based on the notes there was not a finger condition in service. There is no way to determine if the deformity occurred in service or was etiologically related to service 20 [or more] years ago without medical evidence of a finger condition during that time frame. The examiner made no reference to the Veteran's credible report of an in-service injury, and provided no supplemental opinion as to whether a current disability was etiological related to that injury. As such, the Board finds that the September 2015 opinion does not substantially comply with the March 2015 remand directive and, thus, another remand is required in order to provide the Veteran another VA examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board finds that the Veteran's claim of entitlement to service connection for residuals of cuts and bruises of the hand is inextricably intertwined with his claim of entitlement to service connection for a right index finger disability. As such, a remand is required for contemporaneous consideration. See Harris, 1 Vet. App. at 183. Accordingly, the case is REMANDED to the RO or AMC for the following actions: 1. The RO or AMC must obtain from the September 2015 VA examiner a supplemental opinion regarding the lumbar spine degenerative disc disease on a secondary basis. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner should then state an opinion as whether it is least as likely as not (a 50 percent probability or greater) that the Veteran's lumbar spine degenerative joint disease was caused or permanently worsened by his service-connected chronic lumbar strain. If the examiner believes that the disability was permanently worsened by the lumbar strain, the examiner should attempt to identify the baseline level of disability that existed prior to the start of aggravation and the extent of disability that is attributable to aggravation. The examiner should also provide an opinion as to whether the Veteran's lumbar spine degenerative disc disease is manifested by any neurological symptoms, including any associated with his right leg. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. If the prior examiner is unavailable, all pertinent evidence of record should be made available to and reviewed by a suitable substitute who should be requested to provide the required opinions with supporting rationale. 2. The RO or AMC should provide the Veteran with a VA examination by a physician with sufficient expertise to determine the etiology of all hand and finger abnormalities that have been present during the period of the claim. All pertinent evidence must be made available to and reviewed by the examiner. The examiner should identify all hand and right index finger abnormalities that have been present during the period of the claim. For each such abnormality, the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the abnormality is related to the Veteran's active duty or active duty for training. In so doing, the examiner MUST accept the Veteran's assertions as credible evidence of in-service injury, and the examiner MUST consider and discuss the Veteran's assertions. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The RO or AMC must notify the Veteran that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the associated claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for a scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. 4. The RO or AMC also should undertake any other development it determines to be warranted. 5. Then, the RO or AMC must re-adjudicate the Veteran's claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or 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). Shane A. Durkin 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) (2016).