Citation Nr: 1756670 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 02-11 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral foot disability, claimed as secondary to the low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The Veteran served on active duty from October 1969 to May 1972. This matter originally came before the Board from an October 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which declined to reopen the Veteran's claim of entitlement to service connection for a skin condition of the feet. In August 2006, the Board declined to reopen the Veteran's claim of entitlement to service connection for a skin disability of the feet. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In an October 2010 Memorandum Decision, the Court, pursuant to an Order of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) dated in April 2010, vacated the August 2006 Board decision. In being consistent with orders directed by the Federal Circuit and the Court, the Board, in a February 2012 remand, referred the issues of entitlement to service connection for a back disability and a bilateral foot disability as secondary to the claimed back disability to Agency of Original Jurisdiction (AOJ) for adjudication of those issues in the first instance. The Veteran's petition to reopen the claim of entitlement to service connection for a skin condition of the feet was considered inextricably intertwined with the service connection issues, and was remanded pending additional development and adjudication of those claims. In August 2012, the AOJ denied the claims of entitlement to service connection for a back disability and a bilateral foot disability. The Veteran perfected his appeal as to those matters. The claim was remanded by the Board in March 2013, November 2013, and November 2014. In January 2016, the Board reopened the claim of entitlement to a skin disability of the feet and remanded the merits of that issue for adjudication by the AOJ. The issue of entitlement to service connection for a bilateral foot disability was also remanded. The Board denied service connection for a low back disability. The Veteran appealed the denial of service connection for a low back disability to the Court. In May 2017, the Court granted the parties' April 2017 Joint Motion for Partial Remand (JMR), and remanded the appeal to the Board for action consistent with the terms of the JMR. In a July 2016 rating decision, the AOJ granted service connection for dermatitis of the feet. As this award of service connection constitutes a full grant of the benefit sought on appeal, this issue is no longer in appellate status and will not be addressed by the Board herein. The Board notes that the Veteran, in July 2017, submitted a notice of disagreement with regard to the evaluation assigned to dermatitis. The AOJ has responded to this notice of disagreement. As such, this differs from the situation in Manlincon v. West, 12 Vet. App. 238 (1999), where VA had not acknowledged a notice of disagreement. As the AOJ has acknowledged receipt of the Veteran's notice of disagreement in this case and currently has jurisdiction over this claim, Manlincon is not applicable in this case. The Veteran and his spouse testified before the undersigned Acting Veterans Law Judge in April 2003. A transcript of the hearing is associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the April 2017 JMR, the parties agreed that the Board erred in its reliance on a May 14, 2015 medical opinion, as that opinion did not comply with the Board's November 2014 remand directives. They indicated that the November 2014 remand directed that the examiner should address the question of whether there was evidence suggesting that a pre-existing low back disability underwent an increase in underlying pathology during service, i.e., was aggravated during service. They further indicated that the November 2014 remand directed that the examiner should consider the Veteran's lay statements concerning experiencing back problems since service (pointing out that the Veteran had submitted statements in December 2011 and April 2014, as well as a November 2011 statement from his brother). The parties specified that it was not apparent from the May 2015 opinion that the physician considered these lay statements. They concluded therefore, that the Board erred in relying on this opinion to deny the Veteran's claim, and that the Board should direct that a new opinion that complied with the November 2014 remand directives be obtained. The parties also noted that the Board determined that there were no clinical opinions that contradicted the June 2013 and May 2015 opinions of record. They pointed out that in June 2005, a VA podiatric physician stated "[I] am more certain than not that his foot symptoms, pain, swelling, burning sensation is due to the chronic back injury that he sustained prior to service and aggravated during service." Thus, the opinion obtained on remand should address this statement by the podiatrist. Finally, the Board observes that further development and adjudication of the claim of entitlement to service connection for a low back disability may provide evidence in support of the claim of entitlement to service connection for a bilateral foot disability. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Forward the record to the VA examiner who conducted the June 2012 VA spine examination and rendered the May 2015 addendum opinion (or a suitable substitute) for an addendum medical opinion on whether the Veteran's pre-existing low back disability was aggravated by his period of service. Another examination is not required; however, if the VA examiner indicates that he cannot respond to the Board's inquiries without examination of the Veteran, such should be afforded the Veteran. The electronic record should be made available for review in connection with this request. The examiner is asked to offer an opinion regarding the following: (A) Is there any evidence to suggest that a pre-existing low back disability underwent an increase in the underlying pathology during service, i.e., was aggravated during service? If so, what is the evidence to support a finding that it was aggravated? (B) If there was an increase in severity of the back disability during service, was that increase due to the natural progress of the disease, or was it above and beyond the natural progression? (C) If the examiner determines the diagnosed back disorder of lumbosacral strain was not aggravated beyond the natural progression, but there are additional back disabilities present, then an opinion is needed as to whether it is at least as likely as not that any diagnosed back disability had its onset during service or is otherwise etiologically related to service. The examiner should provide a rationale for his or her opinion with reference to the evidence of record and should provide a discussion of the facts and medical principles involved. Review of the entire record is required; however, the examiner's attention is specifically directed to the lay statements of the Veteran and his brother regarding seeking treatment for back problems in service and experiencing back problems since service. The examiner's attention is also directed to the June 2005 VA podiatry record and the statement of the podiatrist therein. This evidence must be considered by the examiner and discussed in his or her rationale. 2. Review the addendum report for compliance with the Board's remand directives. Any inadequacies should be addressed prior to recertification to the Board. 3. Then, after undertaking any additional development that is deemed warranted, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant 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. §§ 5109B, 7112 (West 2012). _________________________________________________ N. RIPPEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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) (2017).