Citation Nr: 18143473 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 03-31 034 DATE: October 19, 2018 REMANDED Entitlement to service connection for a lumbosacral spine disability, including as due to service-connected right and left knee disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from June 1966 to March 1968. This case has a long procedural history. Most recently, in July 2017, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this appeal again, additional development is required before the underlying claims can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). The Board notes that it has referred the issues of entitlement to an earlier effective date for the grant of service connection for right knee sprain and whether new and material has been received to reopen the claim for entitlement to service connection for a right hand disability to the AOJ on numerous occasions during the pendency of this appeal. To date, however, despite multiple referrals from the Board, these issues have not been adjudicated by the AOJ. The Board cannot understand the reason(s) for the AOJ’s inability to adjudicate these claims in light of the multiple prior referrals. Therefore, the Board refers the issues of entitlement to an earlier effective date for the grant of service connection for right knee sprain and whether new and material has been received to reopen the claim for entitlement to service connection for a right hand disability to the AOJ for appropriate action for the fourth time. See 38 C.F.R. § 19.9(b) (2017). 1. Entitlement to service connection for a lumbosacral spine disability, including as due to service-connected right and left knee disabilities, is remanded. The Veteran essentially contends that he incurred a lumbosacral spine disability during active service, specifically as a result of performing strenuous in-service training activities such as the “duck walk.” He alternatively contends that his service-connected right and left knee disabilities caused or aggravated (permanently worsened) his current lumbosacral spine disability. The Board acknowledges that it previously found the Veteran’s VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) in March 2017 to be inadequate for VA adjudication purposes in the July 2017 remand. See Board remand dated July 10, 2017, at pp. 26. The Board also acknowledges that it requested an addendum opinion from the March 2017 VA examiner in the July 2017 remand. Id. Pursuant to the July 2017 remand, the AOJ requested that the VA examiner who completed the March 2017 examination and opinion provide an addendum opinion. Unfortunately, this examiner found persuasive support for her November 2017 addendum opinion concerning the etiology of the Veteran’s lumbosacral spine disability in the absence of service treatment records documenting complaints of or treatment for a lumbosacral spine disability during active service. This was the same error in opinion rationale that this VA examiner made in the original etiology opinion provided following the Veteran’s March 2017 VA back (thoracolumbar spine) conditions DBQ (which the Board found inadequate in its July 2017 remand). Id. Thus, the Board finds the November 2017 addendum opinion to be inadequate for VA adjudication purposes. See also 38 C.F.R. § 4.2 (2017). The Board notes in this regard that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). There is no competent medical evidence of record addressing the nature and etiology of the Veteran’s lumbosacral spine disability. Given the inadequacy of the opinion evidence from the VA examiner who conducted the Veteran’s March 2017 VA back (thoracolumbar spine) conditions DBQ and provided the addendum opinion in November 2017, the Board finds that, on remand, the Veteran should be scheduled for another examination to determine the nature and etiology of his lumbosacral spine disability, including as due to his service-connected right and left knee disabilities. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board in October 2018 without complying with the July 2017 remand instructions. Given this error, another remand is required. 2. Entitlement to a TDIU is remanded. The Board notes that adjudication of the Veteran’s service connection claim for a lumbosacral spine disability by the AOJ on post-remand likely will impact adjudication of his TDIU claim. Thus, the claims are inextricably intertwined and adjudication of the TDIU claim must be deferred again. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any lumbosacral spine disability. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a lumbosacral spine disability, if diagnosed, is related to active service or any incident of service, to include performing strenuous training activities such as the “duck walk.” The examiner also is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a service-connected right knee disability or left knee disability caused or aggravated (permanently worsened) a lumbosacral spine disability, if diagnosed. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a lumbosacral spine disability, alone, is insufficient rationale for a medical nexus opinion. The examiner also is advised that service connection currently is in effect for right knee sprain and for mild degenerative changes of the left knee. The examiner finally is advised not to review or rely upon the March 2017 VA back (thoracolumbar spine) conditions DBQ or the November 2017 VA examiner’s addendum opinion in preparing his or her own opinion. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel