Citation Nr: 18141447 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-23 223 DATE: October 10, 2018 REMANDED The claim of entitlement to service connection for a lumbar spine disability, to include as secondary to the Veteran's service-connected right knee disability, is remanded. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from August 2008 to February 2009. The Veteran also has verifiable service with the West Virginia Army National Guard. The Veteran is a Gulf War Era Veteran. A provisional rating decision was issued in October 2013 by the Regional Office (RO) in Cleveland, Ohio, denying the claims of entitlement to service connection for a lumbar spine disability and TDIU benefits. The RO continued to develop the claims and a final rating decision denying the issues was issued in April 2015. This denial was appealed to the Board in a timely manner. The appeal is REMANDED to the Agency of Original Jurisdiction. VA will notify the Veteran if further action is required. 1. Entitlement to service connection for a lumbar spine disability, to include as secondary to the Veteran's service-connected right knee disability, is remanded. The VA must provide an examination when the evidence shows: (1) A current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for the VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Once VA decides that it is appropriate to provide a VA examination, it must be an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran received two VA examinations to determine the etiology of his lumbar spine disability, in September 2013 and April 2016. An addendum opinion as to etiology was offered in May 2016. In September 2013, the VA examiner diagnosed the Veteran with a lumbar spine strain. The Veteran reported that he did not recall a specific injury or trauma, but he recalled having intermittent back pain during service. He endorsed having a motor vehicle accident prior to service. The Veteran’s imaging results were normal. The examiner noted that the Veteran’s symptoms were consistent with a lumbar strain, which is a self-limited condition without permanent residuals. The examiner opined that there was no evidence of a causal relationship between the Veteran’s lumbar strain and service and there was no evidence of aggravation of any pre-service back condition beyond a normal progression. The examiner opined that the Veteran’s condition was probably aggravated by his body habitus - notably severe obesity. The Veteran received a second VA examination, in April 2016, to determine the etiology and severity of his lumbar spine disability. The VA examiner reported that the Veteran was diagnosed with a lumbar spine strain. The Veteran reported flare ups, and reported, specifically, that his lumbar spine worsened with alteration of his gait. The examiner endorsed that there were no thoracolumbar spine images to review. He opined that the “medical evidence is not sufficient to support a determination of a baseline level of severity.” The Agency of Original Jurisdiction submitted an addendum to the provider, dated May 2016, in which they stated: “Service treatment records provide a clear picture of the back at entrance and during basic training as well as following the knee impairment” followed by a list of lumbar spine related visits, as listed by the Agency of Original Jurisdiction. The VA examiner then noted that the Veteran’s lumbar spine disability was not aggravated beyond a natural progression as a result of the knee gait impairment, as the pre-existing medical condition demonstrated no evidence of worsening after the development of the knee problem. The Board finds that these VA examinations are inadequate. Neither VA examination addressed the Veteran’s Social Security Records, which included a diagnosis of degenerative disc disease of the lumbar spine for the Veteran. See Social Security Records, dated December 2012. This diagnosis is consistent with radiographic imaging from the VA, performed in December 2016, that demonstrated mild degenerative changes and diminished intervertebral disc height at L5-S1. While the Board notes that the May 2016 addendum opinion considered evidence from Service Treatment Records, this evidence was outlined and provided by the Agency of Original Jurisdiction, after the examiner’s original assessment of the record caused him to opine that the evidence was insufficient to determine a baseline status of the Veteran’s lumbar spine. To be considered adequate, all of the evidence of record must be considered. See Barr, 21 Vet. App. at 303; Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board further notes that neither examiner specifically opined as to the causal relationship of obesity secondary to the Veteran’s service connected disabilities to the Veteran’s lumbar spine disability. While the September 2013 VA examiner noted that the Veteran’s body habitus was a causal factor, there was no specific opinion as to the impact of the Veteran’s service-connected disability on his body habitus. Although service connection is not allowed for obesity on its own, obesity may act as an “intermediate step” to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See Marcelino v. Shulkin, No. 16-2149, 2018 U.S. App. Vet. Claims LEXIS 64 (Vet. App. Jan. 23, 2018); VAOPGCPREC 1-2017 (Jan. 2017). Moreover, the April 2016 VA examiner supported his opinion in the May 2016 opinion addendum by noting that there was no worsening in the Veteran’s condition since the onset of the knee condition. However, the VA examiner noted that he had no radiographic testing to determine the current condition of the Veteran’s lumbar spine. As such, the lack of worsening was merely speculative and, as such, is not adequate. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As neither VA examination is adequate to adjudicate this issue, the Veteran should be afforded a new VA examination upon remand. 2. Entitlement to a to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Board finds that the claim for service connection for a lumbar spine disability and the claim of entitlement to TDIU are inextricably intertwined. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2018); 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 issues have been considered). The claims of entitlement to service connection for a lumbar spine disability are “intertwined” because a decision on the lumbar spine disability claim will impact the claim for TDIU. Consequently, the claim of entitlement to TDIU benefits must be remanded as well for contemporaneous adjudication. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and all outstanding private treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Appropriate efforts should be made to obtain and associate with this case file any outstanding service department records, including but not limited to, periods of active Reserves, periods of active duty for training (ACDUTRA), and periods of inactive duty for training (INACDUTRA). If the appellant’s outstanding service department records are unable to be obtained, the attempt and inability to obtain these records should be documented in the record. 3. Schedule the Veteran for an appropriate VA examination for the Veteran’s lumbar spine from an appropriate medical professional. The electronic claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: (a.) Identify all diagnoses for the Veteran’s lumbar spine and provide approximate dates of onset for each disability, if possible. (b.) Did any of the above diagnoses clearly and unmistakably exist prior to the Veteran’s entrance into active service, in August 2008? (c.) For any of the diagnoses identified in response to directive (b), provide an opinion as to whether it was at least as likely as not (a probability of 50 percent or greater) aggravated (i.e., permanently increased in severity). (d.) If so, was any increase clearly and unmistakably (obviously, manifestly, or undebatably) due to the natural progress of the disease? (e.) For any of the above diagnoses, as identified in directive (a), is it at as likely as not (a 50 percent probability or greater) that the Veteran’s lumbar spine disability was caused by the Veteran’s active service? (f.) For any of the above diagnoses, as identified in directive (a), is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s lumbar spine disability was caused or aggravated by the Veteran’s service-connected disabilities? Obesity found to be the proximately caused by the Veteran’s service-connected disabilities should be specifically considered and addressed in the opinion. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of his claimed disability. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones, 23 Vet. App. at 382. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel