Citation Nr: 1801863 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-31 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a lumbar spine disorder, to include as secondary to a service-connected residual of a gunshot wound to the left leg. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1986 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2015. A transcript of that proceeding is associated with the record. The Board remanded the case for further development in June 2015 and August 2017. The case has since been returned to the Board for appellate review. In an October 2017 rating decision, the RO granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective from November 29, 2010. The RO's grant of entitlement to TDIU constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Therefore, that matter is no longer on appeal, and no further consideration is necessary. This appeal was processed using a paper claims file and the Veterans Benefits Management System (VBMS) electronic claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran was afforded a VA examination in September 2017 during which the examiner diagnosed him with lumbar spine degenerative joint disease, intervertebral disc syndrome (IVDS), and spinal stenosis. She opined that the Veteran's lumbar spine disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner's supporting rationale was conclusory and general in nature. For example, the examiner stated that there was no medical evidence that the Veteran's lumbar spine disorder was incurred in or caused by his military service, but she did not discuss any of the Veteran's service treatment records documenting complaints of low back pain. Moreover, the examiner's supporting rationale regarding secondary service connection did not adequately address whether the Veteran's service-connected residuals of a gunshot wound to the left leg aggravated his lumbar spine disorder. For example, the examiner stated that there was no medical evidence of a "significant low back injury or abnormal gait." However, she did not address the VA medical records that note gait abnormalities or explain why such findings are not considered significant. Therefore, a remand is necessary to obtain an additional VA medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, in August 2017, the AOJ requested that the Veteran submit authorization to obtain his private medical records. To date, no response has been received from the Veteran. However, on remand, the AOJ should afford the Veteran an additional opportunity to submit complete authorization forms to obtain any outstanding private medical records. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the disorders on appeal. A specific request should be made for authorization to obtain any outstanding records from Dr. P.W. at the Baptist Hospital. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the above development, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's lumbar spine disorder. An additional physical examination should be performed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a current lumbar spine disorder that manifested in or is otherwise causally or etiologically related to his military service, to include any symptomatology therein. In rendering this opinion, the examiner should consider the Veteran's complaints of low back pain documented in the service treatment records in May 1987 and December 1987. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a current lumbar spine disorder that was caused by or aggravated by his service-connected residuals of a gunshot wound to the left leg. In rendering this opinion, the examiner should specifically address whether the Veteran has an altered gait due to his service-connected residuals of a gunshot wound to the left leg (as opposed to any other disorder), which may have caused or aggravated his current lumbar spine disorder. In so doing, or she should consider the VA medical records noting an antalgic or altered gait. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the medical opinion to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ J.W. ZISSIMOS 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).