Citation Nr: 1743920 Decision Date: 09/29/17 Archive Date: 10/10/17 DOCKET NO. 15-04 708 ) 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 a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD) in excess of 30 percent. ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran had active service from May 1951 to June 1953, and June 1956 to June 1959, with service in Korea as a light weapons infantryman. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico denying the Veteran entitlement to service connection for his back and posttraumatic stress disorder (PTSD), and a TDIU. Entitlement to service connection for PTSD was granted in an April 2016 Board decision, which remanded the claims on appeal for additional development. Thereafter, in June 2016 the Veteran submitted a notice of disagreement (NOD) with the April 2016 rating decision. In a subsequent January 2017 supplemental statement of the case the RO continued the 30 percent disability rating and in February 2017 the Veteran submitted a substantive appeal, via VAF 9, Appeal to Board of Veterans' Appeals. The appeal has now been returned to the Board for further adjudication. More recently, in December 2016, the Board remanded the issues of service connection for a low back disability and a TDIU. For the reasons discussed below, further evidentiary development is necessary before a decision can be reached on the merits of the underlying claim. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action, on his part, is required. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). REMAND After a review of all of the evidence, the Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the underlying claim. In June 2016, the Board remanded the claims for a back disability and a TDIU to the AOJ to obtain a medical opinion. In January 2017 an addendum medical opinion was obtained. Upon review of the January 2017 medical opinion, the Board finds that it is inadequate to rely upon in this case. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Despite the AOJ's actions, the Board finds that there has not been substantial compliance with the June 2016 remand directives, necessitating further remand of this matter. Here, the June 2016 Board remand decision directed the AOJ to obtain an addendum medical opinion for the Veteran's back claim. Although such a VA examination was provided in August 2016, a review of the record reveals that this examination was inadequate, as its rationale refers to review of the Veteran's service treatment records, which a September 2012 memorandum confirms as destroyed. As such, in a January 2017 addendum opinion, and similar to the August 2016 opinion, the practitioner determined that "based on record review and today[s] examination [the] Veteran[s] STR and within various year[s] after active military service there is no clinical and objective evidence that support a diagnosis of back condition. I concur with previous medical opinion given on Oct 25, 2012. "STR", virtual VA are silent with no evidence of treatment, follow up or a diagnosis. A diagnosis of back condition was given on 2012 many years after active duty. For this reason condition is not related to service." (Emphasis added.) As determined in the Board's previous remand, VA has a heightened duty to consider the "benefit of the doubt" doctrine when service treatment records are missing or destroyed. See generally Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v, Derwinski, 1 Vet. App. 365, 367 (1991). Therefore, the Board cannot rely on an examination that refers to records that are not available for review. Accordingly, remand of this claim is required for provision of a supplemental opinion. In this regard, the practitioner should also address the September 2010 etiology opinion provided by Dr. N.O.V., which states that the "[Veteran] while on active duty service injured his back as a result of [the] continuous carrying of heavy equipment on his back." As to the claim for increase for PTSD, the Board is cognizant that the Veteran recently underwent a January 2017 examination. Review of this examination, however, reveals that the examiner found that the Veteran did not have a psychiatric disability but also focuses on the lack of service connection. Service connection has already been established, however, and this focus on the in-service element raises the issue of whether the examiner properly focused on the evidence of record of a current psychiatric disability and the functional impairment created by such disability. For these reason, upon remand, the AOJ is directed to obtain another examination. As for entitlement to a TDIU, here, the matter of entitlement to service connection for a back condition will have a substantial effect on the merits of the Veteran's TDIU claim and, therefore, intertwined with the other issues in appellate status. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). Updated VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After completing directive #1, return the Veteran's claims file to an appropriate practitioner - other than the practitioner who conducted the August 2016 back examination and who also provided the January 2017 addendum medical opinion so a supplemental opinion may be provided. A new examination is only required if deemed necessary by the AOJ or the practitioner. The entire claims file including a copy of this remand must be made available to the practitioner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. If a new examination is warranted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. The practitioner must provide opinions on the following: (a) Whether it is at least as likely as not (50 percent or greater probability) the Veteran's back disability: (1) began during active service; or (2) is otherwise related to his active duty service, to include his duties during that time. The practitioner is specifically instructed that the Veteran's service treatment records are not available for review and therefore lack of treatment during the Veteran's active duty service may not be cited as the basis for an etiology opinion. Moreover the practitioner must specifically address the September 2010 etiology opinion provided by Dr. N.O.V. as cited above, which states that the Veteran's carrying of heavy equipment on his back during service contributed to his present back condition. The practitioner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the practitioner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 3. After completing directive #1, obtain an examination regarding the severity of the service-connected PTSD. The appropriate Disability Benefits Questionnaire (DQB) should be completed. If possible, the examination should be completed by an examiner different than the examiner who completed the January 2017 examination. 4. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing practitioner for corrective action. 5. After undertaking any necessary additional development, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a SSOC for all of the issues on appeal and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 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). _________________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2016).