Citation Nr: 1800712 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 11-23 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for an acquired psychiatric disability as secondary to a back disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 and April 2012 rating decisions from the Department of Veterans (VA) Regional Office (RO) in Montgomery, Alabama. In January 2015, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In January 2016 the Board remanded the issues on appeal for additional development and a new VA examination. The issues have now been returned to the Board for appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board regrets the delay caused by remand, but on review, finds additional development is necessary. Back disability The Veteran asserts that his back disability is related to complaints of pain and injuries he incurred in service due to lifting heavy objects. He asserts that as a result of his back disability he also has depression and is unable to work. In January 2016 the Board directed the AOJ to obtain the Veteran's VA treatment records from June 1975 to December 1981, and if such records were unavailable this should be made clear. In April 2016 the AOJ made a request for such records and indicated that a negative response was required if the records could not be located. Only records from 2011 forward were obtained. Absent a negative response, the Board cannot determine whether the missing records are available or whether further attempts to obtain them would be futile. In addition, when VA is unable to obtain records the appellant must be notified. 38 C.F.R. § 3.159(e) (2017). This has not occurred in this case. Given the above, further efforts to obtain records are necessary and remand is necessary to comply with the terms of the Board's January 2016 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). During the May 2016 VA examination the Veteran indicated that he began receiving private treatment for his back every six months during the last two to three years. As such, on remand the Veteran should be provided an opportunity to submit additional treatment records or authorize VA to obtain them. The Board also finds the May 2016 opinion confusing in that it states the examiner cannot state without mere speculation that the chronic low back pain after leaving service is at least as likely as not incurred or caused by injury in May 1975, but also states that such was less likely than not. On remand, an additional medical opinion should be obtained. Intertwined Issues As the Veteran asserts that service connection is warranted for a current psychiatric disability that was caused or aggravated by his back disability, it would be premature to address that issue prior to resolving the claim for service connection for a back disability. The Board finds that the TDIU issue is inextricably intertwined with the service connection claims for a back disability and acquired psychiatric disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). In his application for increased compensation due to unemployability the Veteran asserted that he is unable to work due to his chronic back pain and depression. Therefore, those issues must be addressed before the Board can adjudicate the TDIU issue on appeal. Updated VA treatment records should also be associated with the claims file. 38 U.S.C. § 5103A(c) (2012). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to the issues on appeal, to specifically include records from Dr. D.J. (see May 9, 2016 VA Back Examination Report). Another attempt should be made to obtain VA records dating from June 1975 to December 1981. A negative response to verify the unavailability of records must be added to the electronic claims file if records from June 1975 to December 1981 are not obtained. Relevant VA treatment records dating since April 2016 should be added to the file. All other properly identified records should also be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After the above has been accomplished, obtain a medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current back disability had its onset in, or is otherwise related to the Veteran's period of active duty service. In providing a response, the examiner should comment upon the Veteran's documented in-service complaints of back pain and muscle spasm in 1975, the Veteran's post-service history of treatment for back problems, and the Veteran's own assertions that he has experienced back pain since injuring his back through heavy lifting and/or a fall during service in 1975. 3. Conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. For example, the AOJ should consider whether a VA medical opinion regarding the claim for service connection for a psychiatric disorder is warranted. 4. After completing the requested actions, and any additional actions deemed necessary, the AOJ should readjudicate the service connection claims for a back disability and psychiatric disability secondary to a back disability, and entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if 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). These claims 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).