Citation Nr: 1808219 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-07 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a lumbosacral spine disability. 2. Entitlement to a disability rating greater than 20 percent for a left ankle disability, including on an extraschedular basis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from January 1996 to January 2000, including in Bosnia and Kuwait. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied, in pertinent part, the Veteran's claim of service connection for a lumbosacral spine disability (which was characterized as lower back trauma). The Veteran disagreed with this decision in April 2011. He perfected a timely appeal in March 2013. This matter next is on appeal from a February 2014 rating decision in which the RO denied, in pertinent part, the Veteran's claim for a disability rating greater than 20 percent for a left ankle disability, including on an extraschedular basis (which was characterized as an increased rating claim for left ankle sprain with posterior tibialis tendinitis/dysfunction). The Veteran disagreed with this decision in March 2014. He perfected a timely appeal in September 2015. A videoconference Board hearing was held in January 2015 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. Having reviewed the record evidence, to include the Veteran's hearing testimony, the Board finds that the issues on appeal should be characterized as stated on the title page. In March 2015, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ schedule the Veteran for appropriate examinations to determine the nature and etiology of his lumbosacral spine disability and the current nature and severity of his service-connected left ankle disability. The requested examinations occurred in 2015 and 2016. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The issue of entitlement to an earlier effective date than October 26, 2017, for a 70 percent rating for posttraumatic stress disorder (PTSD) has been raised by the record in a November 2017 statement but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over this claim and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). Unfortunately, as is explained below in greater detail, the appeal is REMANDED again to the AOJ. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that he incurred a lumbosacral spine disability during active service. He specifically contends that he injured his lumbosacral spine during active service and experienced continuous lumbosacral spine disability since his service separation. He also contends that his service-connected left ankle disability is more disabling than currently evaluated. He alternatively contends that the symptomatology which he experiences as a result of his service-connected left ankle disability is not contemplated within the relevant rating criteria, entitling him to consideration of an increased rating for this disability on an extraschedular basis. This appeal was remanded in March 2015. 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"). With respect to the Veteran's service connection claim for a lumbosacral spine disability, the Board acknowledges initially that the AOJ scheduled the Veteran for appropriate examination for this disability in May 2015 and obtained addendum opinions to the May 2015 VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) in June and December 2015. Unfortunately, a review of this evidence shows that, although May 2015 VA examiner provided an opinion concerning the contended etiological relationship between the Veteran's current lumbosacral spine disability and active service, the rationale for this opinion is inadequate for VA adjudication purposes. See 38 C.F.R. § 4.2 (2017). Following the May 2015 VA examination, the VA examiner opined in June and again in December 2015 that it was less likely than not that the Veteran's current lumbosacral spine disability was related to active service. The rationale for this opinion was that no lumbosacral spine disability was noted on the Veteran's separation physical examination when he separated from active service. The rationale also was that prior VA examinations conducted in 2009, 2010, and 2011 showed no lumbosacral spine disability. The rationale finally was there were no records from the Veteran's post-service employment as a letter carrier with the U.S. Postal Service showing that he experienced a lumbosacral spine disability. In other words, the May 2015 VA examiner found the absence of evidence in the claims file to be persuasive support for his negative nexus opinion concerning the contended etiological relationship between the Veteran's current spine disability and service. The Board notes that it is well-settled 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"). Absent the opinions provided by the May 2015 VA examiner in June and December 2015, there otherwise is no evidence which addresses the contended etiological relationship between the Veteran's current lumbosacral spine disability and active service. Accordingly, the Board finds that, on remand, the Veteran should be scheduled for another VA examination to determine the nature and etiology of his lumbosacral spine disability, if possible before a different VA examiner than the examiner who conducted the May 2015 VA back (thoracolumbar spine) conditions DBQ. With respect to the Veteran's increased rating claim for a left ankle disability, the Board notes initially that he is in receipt of the maximum scheduler rating available for a left ankle disability under DC 5271. See 38 C.F.R. § 4.71a, DC 5271 (2017). As such, consideration of entitlement to an increased rating on an extraschedular basis is warranted. See also 38 C.F.R. § 3.321 (2017). The Board notes further that, following the March 2015 remand, the Court issued a decision in Correia mandating new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the left ankle, as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held in Correia that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. The Board next notes that, although the Veteran's service-connected left ankle disability was examined in September 2015 and in May 2016, neither of these examinations complied with Correia. For example, neither of these examination reports contain any findings concerning the Veteran's (non-service-connected) right ankle. Accordingly, and because it is bound by the Court's decision in Correia, the Board finds that, on remand, the Veteran should be scheduled for updated VA examination to determine the current nature and severity of his service-connected left ankle disability. See also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (finding 38 C.F.R. § 4.59 not limited to diagnostic codes involving range of motion and extending Correia to disabilities involving painful joint or periarticular pathology). The AOJ also should attempt to obtain the Veteran's updated treatment records. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for examination to determine the nature and etiology of any lumbosacral spine disability, if possible before a different VA clinician than the clinician who conducted the May 2015 VA back (thoracolumbar spine) conditions DBQ. 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. A rationale also should be provided for any opinions expressed. 2. Schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected left ankle disability. 3. Readjudicate the appeal. The appellant 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 (West 2012). _________________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).