Citation Nr: 1801392 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-00 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for residuals of cold injuries to the low back, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of cold injuries to the hips, to include as secondary to low back disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from June 1952 to June 1955. These matters come before the Board of Veterans' Appeals (Board) on appeal of May 2012 and October 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This case was previously remanded by the Board in January 2017. The case has been returned to the Board for review. In October 2017, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000), the Federal Circuit held that VA has an obligation to explore all legal theories, including those unknown to the Veteran, by which the Veteran can obtain the benefit sought. Accordingly, the Veteran's appeals as to the issues of entitlement to service connection for residuals of cold injuries to the low back and entitlement to service connection for residuals of cold injuries to the hips have been expanded to include entitlement to service connection under the theory of secondary service connection, and have been characterized as stated on the title page. See Roberson v. Principi, 251 F. 3d 1378, 1384 (2001); Moody v. Principi, 360 F. 3d 1306, 1310 (Fed. Cir. 2004). 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) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that further development is necessary before a decision on the merits may be made regarding the issues on appeal. Low Back Disability Regarding service connection for a low back disability, the January 2016 VA examiner opined that the Veteran's "current chief complaints of increased pain and loss of function are more likely than not - the result of confounding factors" including the Veteran's service-connected PTSD which "may intensify the patients perception of physical [musculoskeletal] pain." The January 2016 VA examiner further noted that "evaluating the possible impact of these multiple complex confounding factors" causing the Veteran's perception of pain are beyond the technical expertise of a general medical provider. In January 2017, the Board remanded the Veteran's low back disability claim to obtain a psychiatric examination of the Veteran to obtain an opinion as to whether the Veteran's low back disability is aggravated by his service-connected PTSD. The Veteran was not provided an examination to determine whether his service-connected PTSD aggravates his low back disability. Compliance with remand directives is not discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Board must remand the matter so that the January 2017 remand directives may substantially be completed. Additionally, at the October 2017 Board hearing the Veteran testified that while deployed in Korea he stepped off a platform, slipped and fell onto a railroad track. He further testified that he was in the 121st evacuation hospital for approximately five or six weeks. However, the January 2016 VA examiner noted that the Veteran did not describe any traumatic events during service. On remand, the VA examiner must discuss the Veteran's testimony that he fell and injured his back while stationed in Korea. The Board further notes that the Veteran's service treatment records are fire-related (i.e., destroyed or damaged by a fire at the National Personnel Records Center (NPRC) facility in 1973). As such, the Board recognizes that VA's duty to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, is heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Hip Disability Regarding the matter of service connection for bilateral hip disabilities, the January 2016 VA examiner diagnosed the Veteran with bilateral hip osteoarthritis. The VA examiner stated that the "actual source of this Veteran's thigh pain is NOT the anatomic hip joints" rather it is "referred pain from his lumbar spine." The examination report includes the opinion that the Veteran's referred pain is from the back. However, the January 2016 VA examiner did not opine as to whether the Veteran's diagnosed bilateral hip osteoarthritis was related to his active service or secondary to his low back disability. The VA examiner only discussed the Veteran's pain not his diagnosed bilateral hip osteoarthritis. Thus, the Board finds that the January 2016 VA examination is inadequate for decision making purposes. See Barr v. Nicholson, 21 Vet. Ap. 303, 312 (2007). Accordingly, remand is required for a VA addendum opinion. Additionally, at the October 2017 Board hearing the Veteran testified that he first injured his hips when he fell on a railroad track while in Korea and spent five to six weeks at a hospital. The January 2016 VA examiner did not discuss the Veteran's statements. On remand the VA examiner is directed to address the Veteran's statements regarding an in-service injury. TDIU The Veteran's claim for a TDIU is inextricably intertwined with the other issues on appeal and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). 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 a qualified VA examiner other than the one who conducted the January 2016 VA examination, to provide an addendum opinion regarding the nature and etiology of the Veteran's low back disability. Provide a copy of this remand and the claims file to the examiner for review. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such examination should be scheduled. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disability is related to his active service. The opinion expressed should reflect consideration of the Veteran's testimony that he injured his back falling on a railroad track during active service and spent approximately five to six weeks in the hospital due to the in-service event. b) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current low back disability is proximately due to, or the result of the Veteran's service-connected PTSD. c) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current low back disability is aggravated by his service-connected PTSD. Aggravation is defined as a permanent worsening beyond the natural progression. 2. Forward the record to a qualified VA examiner other than the one who conducted the January 2016 VA examination, to provide an addendum opinion regarding the nature and etiology of the Veteran's bilateral hip disability. Provide a copy of this remand and the claims file to the examiner for review. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information then such examination should be scheduled. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has hip disability that is related to his active service. The opinion expressed should reflect consideration of the Veteran's testimony that he injured his hips falling on a railroad track during active service and spent approximately five to six weeks in the hospital due to the in-service event. b) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran has current hip disability that is proximately due to, or the result of the Veteran's low back disability. c) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran has current hip disability that is aggravated by his low back disability. Aggravation is defined as a chronic worsening beyond the natural progression. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether service connection for a low back disability, for right and/or left hip disability, and entitlement to a TDIU, may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. 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 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). _________________________________________________ U. R. POWELL 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).