Citation Nr: 1801214 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-24 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for back disorder (claimed as residuals of injury to back and discs in back). 2. Entitlement to service connection for residuals of septum hernia. 3. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Iowa Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1982 to November 1984. He was honorably discharged. This matter comes before the Board of Veterans' Appeals (Board) from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In May 2017, a video hearing was held before the undersigned. A transcript of that hearing is of record. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). "A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Id. at 311 (internal citations and quotations omitted). In evaluating the probative value of medical opinion evidence, the Board may consider the following factors: (1) whether the testimony is based upon sufficient facts or data; (2) whether the testimony is the product of reliable principles and methods; and (3) whether the expert witness has applied the principles and methods reliably to the facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Medical opinions dated January 2013 state that the Veteran's back and hernia disorders are less likely than not related to service. These opinions do not consider the May 2017 hearing transcript or lay statements submitted by the Veteran in May 2017 and August 2017. Regarding the Veteran's back disorder, this new evidence reveals that the Veteran began experiencing back problems immediately following service, including awakening in pain and being unable to move on at least one occasion. Regarding the hernia disorder, this new evidence reveals that heavy radio equipment fell on the Veteran's stomach during the May 1984 MVA crash, and that he felt an ulcer-like, knotty area in his gut shortly thereafter. Since the January 2013 VA medical opinion does not consider this evidence, it is based on insufficient facts and bases. A new medical opinion is required. The Veteran's claim of entitlement to total disability rating due to individual unemployability (TDIU) is inextricably intertwined with the claims remanded for further development. Accordingly, they must be considered together, and thus a decision by the Board on the Veteran's TDIU claim would at this point be premature. 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 are adjudicated). VA treatment records to June 26, 2015, have been associated with the claims file. Therefore, the RO should obtain all relevant VA treatment records dated from June 27, 2015, to the present before the remaining issues are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). Medical treatment records previously identified by the Veteran appear to have been made of record, including private medical records from Nebraska, Wyoming, and Iowa, and VA medical records from Wyoming and Iowa. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder all records of the Veteran's VA treatment from June 27, 2015, to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed back disorder and residuals of septum hernia. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: a. Whether the Veteran has any current or previously-diagnosed back disorder; b. Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed back disorder was incurred in the Veteran's service, including but not limited to the 1984 MVA accident, during which heavy radio equipment fell on the Veteran's stomach; c. Whether the Veteran has any current or previously-diagnosed residuals of septum hernia; and d. Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed residuals of septum hernia was incurred in the Veteran's service, including but not limited to the 1984 MVA accident, during which heavy radio equipment fell on the Veteran's stomach. In reaching these opinions, the examiner should consider the Veteran's recent lay statements, as contained in the May 2017 correspondence, the May 2017 hearing transcript, and the August 2017 correspondence. The examiner should comment upon the Veteran's hearing testimony that he hurt his stomach when heavy radio equipment fell on him during the car crash and that the Veteran experienced back difficulties immediately following service. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 3. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claims. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity 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 (2012). _________________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).