Citation Nr: 1807200 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-15 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for lumbar spinal stenosis, claimed as lumbar spondylosis, L1-L2 left paracentral disk herniation, L1-L2 degenerative disc protrusion, intervertebral disc syndrome L5-S1, sacroiliac weakness, L5-S1 ventral disc bulge, L3-L4 bilateral facet arthropathy, and DJD, and as secondary to the service-connected disability of bilateral pes planus. 2. Entitlement to service connection for a left leg disability also claimed as sciatica, neuropathy associated with spinal stenosis, also claimed as lumbar spondylosis, L1-L2 left paracentral disk herniation, L1-L2 degenerative disc protrusion, intervertebral disc syndrome L5-S1, sacroiliac weakness, L5-S1 ventral disc bulge, L3-L4 bilateral facet arthropathy, and DJD, and as secondary to the service-connected disability of bilateral pes planus. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty for training from January 1982 to September 1982, from March 1985 to July 1986 and from June 1991 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2011 and December 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Board notes that, during the pendency of the appeal, the Veteran was represented by a private attorney. In August 2016, the Veteran's representative withdrew his representation. The Veteran has not appointed a new representative and, as such, he is currently unrepresented in the matter before the Board. The Veteran was scheduled to appear for a videoconference hearing before a Veterans Law Judge (VLJ) on March 8, 2017. The Veteran failed to appear for the hearing, and has not requested it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (d) (2016). This matter is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). First, the Board notes that, although the Veteran had three periods of active duty for training, the only service records associated with the Veteran's file relate to his first period of service; from January 1982 to September 1982. On remand, all outstanding service personnel records and service treatment records relating to the Veteran's additional periods of active duty for training should be obtained and associated with his electronic file; specifically, all records relating to the Veteran's active duty for training for the periods from March 1986 to July 1986 and from June 1991 to February 1992. The Board notes that the Veteran underwent a VA bones examination in July 2011. The Veteran reported that he was injured in a fall from a truck in 1986 while on active duty for training. The examiner opined that it was less likely than not that the Veteran's lumbar spine disability and left leg disability were incurred in or caused by his military service. The examiner noted that the Veteran's service treatment records (STRs) did not document degenerative disease of the back and that there is no mention of it in the Veteran's "self reported histories associated with annual physical examinations in 1982, 1995 and 1996 and is not service connected." The examiner also noted that the Veteran's current arthritic low back pain was not significant until 2003. Additionally, the examiner determined that the Veteran's bilateral lower extremity radiculopathy was associated with the Veteran's nonservice-connected degenerative disc disease of the lumbar spine. The Board finds that July 2011 opinion is inadequate because the examiner relied upon the lack of treatment in service to form the basis of his opinion and did not discuss the Veteran's statements regarding the onset of his injuries. Furthermore, the Veteran's complete service records were not available for the examiner's review at the time of the examination. Based on these considerations, new and adequate VA examinations and opinions addressing the Veteran's claims are needed. Additionally, the Board finds that the Veteran's entitlement to a TDIU is inextricably intertwined with his claims currently on appeal. Therefore, the Board finds that the claim for a TDIU must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Accordingly, the case is REMANDED for the following action: 1. Obtain from the appropriate repository, any outstanding service treatment and personnel records, specifically relating to the Veteran's periods of active duty for training from March 1986 to July 1986 and from June 1991 to February 1992. 2. Obtain all outstanding, pertinent VA treatment records and associate them with the electronic file. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 3. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to his service-connected disabilities. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the electronic file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records. 4. After completing the above development, schedule the Veteran for an appropriate VA examination to determine the nature, extent, onset and etiology of his back disability. The electronic file should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should provide answers to the following questions: a. Whether it is at least as likely as not (50 percent probability or greater) that any diagnosed back disability, to include degenerative joint disease, is causally related to service. b. Whether it is at least as likely as not (50 percent probability or greater) that any diagnosed back disability, to include degenerative joint disease was caused or worsened beyond natural progression (aggravated) by his bilateral pes planus. 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 the conclusion as it is to find against it. A complete rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, (s)he should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). The examiner is reminded to consider and address the Veteran's lay statements regarding the nature and onset of his disabilities; more specifically that his back disability is related to an incident in service in which he fell out of a truck. 5. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, onset and etiology of his left leg disability. The electronic file should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should provide answers to the following questions: a. Whether any diagnosed left leg disability, to include neuropathy, is at least as likely as not (50 percent probability or greater) causally related to service. b. Whether it is at least as likely as not (50 percent probability or greater) that any diagnosed left leg disability, to include neuropathy, was caused or worsened beyond natural progression (aggravated) by his bilateral pes planus and/or his back disability. 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 the conclusion as it is to find against it. A complete rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, (s)he should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). The examiner is reminded to consider and address the Veteran's lay statements regarding the nature and onset of his disabilities; more specifically that his leg disability is related to a back injury he sustained in service due to a fall from a truck. 6. Then, readjudicate the appeal. If the benefits sought are not granted in full, furnish the Veteran a Supplemental Statement of the Case and, after allowing the appropriate period of time for response, return the case to the Board. The appellant 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).