Citation Nr: 1808493 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-21 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral leg disability to include as secondary to service-connected disability. 2. Entitlement to service connection for ruptured Achilles tendon claimed as due to service-connected lumbosacral strain. 3. Entitlement to a rating in excess of 40 percent for lumbosacral strain to include on an extraschedular basis. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1974, and June 1977 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2014, the Board remanded the appeal for additional development. In September 2016, the Board adjudicated multiple issues and denied the claims of entitlement to (1) service connection for a bilateral leg disability to include as secondary to service-connected disability and (2) a rating in excess of 40 percent for lumbosacral strain. The Veteran appealed these denied claims to the United States Court of Appeals for Veterans Claims (Court). In March 2017, the Court granted a Joint Motion for Partial Remand (JMR), and vacated the Board's September 2016 decision as to these two issues only. The Court remanded those matters to the Board for development consistent with the JMR. The Board acknowledges the attorney's June 2017 request that the Board grant the Veteran's claim for a total disability evaluation based on individual unemployability (TDIU). However, the TDIU claim was remanded by the Board in September 2016 and those actions are not completed. Thus, jurisdiction remains with the RO at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND To ensure that VA has met its duty to assist the Veteran and complied with the March 2017 JMR, the Board finds that remand is necessary. It is noted that the March 2017 JMR found that the Board (1) relied on an inadequate examination-noting that the examiner did not consider the lay evidence or provide an adequate rationale for the opinion; (2) implicitly reopened the claim for service connection for ruptured left Achilles tendon; (3) failed to consider the competency and credibility of the lay evidence to include why the Veteran is not competent to diagnose back spasm or whether his low back disorder could manifest in a spasm; and (4) failed to consider whether use of an assistive device such as a wheelchair is included the 40 percent rating for the low back or creates a unique disability picture meeting the first prong of Thun v. Peake, 22 Vet. App. 111, 115, (2008). The JMR directed that the Board should (1) get a medical opinion that takes into account lay statements in regard to whether there is "any association between Appellant's left ankle disability and his service-connected low back disability" and between "bilateral hip disability and service-connected low back disability;" (2) address the competency and credibility of the lay evidence; and (3) reassess the evidence to determine whether extraschedular referral for the low back disability is warranted. With regard to the Veteran's left ankle/ruptured Achilles tendon, this matter has been added to the issues in this appeal in view of the JMR. As indicated by the JMR, the Board must assess the Veteran's competency and credibility in making a determination on the claim of service connection for ruptured left Achilles tendon. While the Veteran is competent to report symptom, injuries, and first-hand experiences, the credibility of his statements must be considered in the context of the entire record. At the time of his diagnosis for left Achilles tendon rupture in May 1997, the Veteran reported that he had slipped on some steps, twisted his left ankle and struck his quad against the back of the steps; in connection with his VA disability claim, he later reported in August 1997 (VA Form 21-4138) that his back gave out while "going up a stairway" and he "fell about six steps and injured my Achilles tendon;" yet later, he reported in March 1998 (NOD) that "I was having muscle spasms that's why I fell down stairs." Additional statements by the Veteran from this time forward reflects that his back gave out from a spasm, which then caused him to fall down stairs rupturing his left Achilles tendon. In view of the record, the Board believes that additional information from a medical professional is necessary to decide the matter. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should obtain all pertinent updated treatment records and associate these with the claims file. 2. After the treatment records have been updated, the Veteran should be scheduled for a VA examination of the back to ascertain the severity of his service-connected lumbosacral strain using the most recent Disability Benefits Questionnaire for Back (Thoracolumbar Spine) Conditions. The claims file must be reviewed (to include this remand decision) and the review noted in the report. For evaluation purposes, all symptoms should be identified along with their frequency, duration, and severity. All clinical findings should be reported in detail to include the functional impact on the Veteran's ability to perform the activities of daily living and the physical/mental acts required for employment. To the extent possible, the examiner should indicate the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to provide the information, he or she should clearly explain why that is so. (a) The examiner should indicate whether the Veteran has any medical restrictions imposed on his activities due to service-connected lumbosacral strain. (b) The examiner should indicate whether any assistive devices are used or required due to service-connected lumbosacral strain and the frequency of use. (c) The examiner should indicate whether the Veteran has difficulties with walking, standing, sitting, and/or instability associated with lumbosacral strain. (d) The examiner should indicate whether the Veteran takes any prescriptive medications for lumbosacral strain that impact cognitive or motor skills. In addition to evaluating the Veteran's service-connected lumbosacral strain disability, the Board must consider the claim of entitlement to service connection for ruptured left Achilles tendon, which the Veteran avers occurred when he had a back spasm in May 1997 causing him to fall down a few stairs. To assist the Board in this matter, the examiner should answer the following questions to the extent possible. (a) Does the Veteran have a documented post service medical history of muscle spasms associated with lumbosacral strain prior to May 1997 and, if yes, are these best characterized as mild, moderate, or severe? (b) Does the Veteran have a documented medical history of muscle spasms associated with lumbosacral strain in the months or one year period following his left Achilles tendon rupture? (c) Did the Veteran take medication, such as Flexeril, for muscle spasms associated with lumbosacral strain either prior to May 1997 or in the one year period following his left May 1997 Achilles tendon rupture? (d) Considering the Veteran's report of spasm in May 1997 associated with his fall and the objective medical findings prior to the May 1997 injury, at the time of the May 1997 injury, and soon after that injury, is it as likely as not (50 percent or greater probability) that the Veteran had a back spasms so severe it caused his back to "go out" in May 1997? A complete rationale for the medical opinion is required. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After the treatment records have been updated, the Veteran should be scheduled for a VA examination of the lower extremities (legs). The claims file must be reviewed and the review noted in the report. A detailed medical history should be obtained. With respect to bilateral leg problems, the examiner should delineate all current disabilities. Then with respect to each diagnosed disability, the examiner should opine as to: (a) Whether it is at least as likely as not (50 percent or greater probability) related to the Veteran's service, to include incidents documented in service treatment records. (b) Whether it is at least as likely as not (50 percent or greater probability) proximately due to service-connected low back disability. (c) Whether it is at least as likely as not (50 percent or greater probability) aggravated by service-connected low back disability. In formulating his/her opinion, the examiner should accept as truthful the Veteran's history of injury and/or symptoms to the extent not contradicted by documented records or statements. The opinion should be predicated on sound medical principles with consideration of the Veteran's statements/history, clinical findings of record, current evaluation findings, relevant medical literature and knowledge. A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After ensuring any other necessary development has been completed, the AOJ should readjudicate the claims. The AOJ should assess the evidence to determine whether extraschedular referral for the low back disability is warranted. If the benefits sought are not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). _________________________________________________ DONNIE R. HACHEY 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).