Citation Nr: 21065326 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-17 767 DATE: October 25, 2021 REMANDED Entitlement to service connection for a bone disability (claimed as degenerative joint disease, osteoporosis, and osteopenia) is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a left foot disability (also claimed as fractured toes) is remanded. Entitlement to a total disability rating based on individual employability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from July 1972 to July 1975. He appealed a July 2014 rating decision by the Agency of Original Jurisdiction (AOJ). These matters were remanded for additional development in November 2018 and April 2021. Service Connection Claims The Veteran contends that his claimed conditions resulted from injuries sustained during service or were caused or aggravated by his service-connected post-concussive headaches, bilateral knee strain, right foot tendonitis, and traumatic brain injury (TBI) residuals. See, e.g., February 2014 VA Forms 21-4138 and April 2016 Third Party Correspondence. The Board's April 2021 remand directed the AOJ to obtain new opinions for the Veteran's claimed disabilities. Although new examinations were performed and opinions were obtained in August and September 2021, for the following reasons another remand is required. For the Veteran's cervical and lumbar disabilities, the examiner was instructed to advise whether any conditions were related to service, to include the Veteran's December 1974 skull trauma and July 1975 report of back pain, or were caused or aggravated by the Veteran's service-connected disabilities. As to the former query, the examiner was directed to assume the Veteran's February 2014 statement, June 2015 statement, August 2015 Decision Review Officer (DRO) Hearing testimony, and April 2016 statement were true, and determine whether a nexus between his claimed conditions and service was "medically plausible." The opinion addressing direct service connection for the claimed cervical and lumbar spine conditions cuts off midsentence and does not provide supporting basis for its conclusions. Later in the report, the examiner stated that the February 2014, June 2015, and April 2016 statements and August 2015 testimony were "presumed to be true," she advised those statements did not account for the Veteran's reports that he incurred a back disability during post-service employment. Consequently, the examiner did not address whether a nexus between the claimed conditions and service was "medically plausible." As to the secondary service connection theory of entitlement, the opinion states that the Veteran's back injury initially occurred in 2009, with another incident occurring later, and that those injuries occurred 30 years after service. Thus, the opinion contains no discussion of the relationship between the Veteran's claimed cervical and lumbar disabilities and his service-connected conditions. Although an addendum opinion regarding the cervical spine was obtained in September 2020, the supporting rationale only discussed causation and did not address whether the headaches and TBI residuals could aggravate the Veteran's claimed cervical spine conditions. Moreover, a revised opinion regarding the lumbar spine conditions was not obtained. The Board notes that the examiner indicated that scoliosis was not noted at entry to service and did not appear to be a congenital defect. However, the examiner did not address whether the scoliosis was congenital disease and merely indicated the question was not applicable. Further clarification is required on this matter. As to the claimed osteoporosis, osteopenia, bilateral hip, and left foot conditions, the opinion did not address whether those conditions were caused or aggravated by the Veteran's service-connected disabilities. The rationale instead states that the Veteran's chronic obstructive pulmonary disease and emphysema with lengthy history of steroid use must be taken into account. The opinion does not address the claimed conditions and their relationship to the Veteran's service-connected disabilities; thus, clarification is required. Accordingly, remand is necessary to obtain new opinions on the claimed conditions. TDIU With respect to the claim for TDIU, the Veteran and his representative maintain that the Veteran is unemployable due to service-connected disabilities as well as conditions for which service-connection is being sought. See, e.g., April 2014 VA Form 21-8940 and June 2015 Correspondence. At present, the Veteran does not meet the schedular criteria for TDIU. Governing regulations provide that all Veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director of the Compensation Service for consideration of an extraschedular TDIU rating. 38 C.F.R. § 4.16(b). The available evidence indicates that the Veteran completed four years of high school, and worked as a livestock handler, tractor driver, loader, bandsaw operator, and as a police officer. See April 2014 VA Form 21-8940 and October 2011 DRO Hearing Tr. pp. 11-12. Although the Veteran has asserted that he stopped working due to his claimed cervical and lumbar spine disabilities, he has also asserted that he is unemployable due to this service-connected headaches, bilateral knee strain, and right foot tendonitis. See April 2014 VA Form 21-8940 and June 2015 Correspondence. The Board is prohibited from adjudicating extraschedular TDIU in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). Accordingly, remand is required to refer consideration of extraschedular TDIU to the Director of the Compensation Service. As the determinations made on the Veteran's service connection claims could change the Veteran's eligibility for schedular TDIU, the Board finds that in remand status, the AOJ should adjudicate the TDIU claim only after the service connection claims have been adjudicated. If the outcome of the remanded claims does not change the Veteran's eligibility for schedular TDIU, then the AOJ should proceed with referral of the TDIU matter for extraschedular consideration. The matters are REMANDED for the following actions: 1. Refer the claims file to an appropriately qualified clinician, other than the August 2021 examiner, for preparation of a medical opinion. The entire claims file, including a copy of this remand, must be made available to the reviewing clinician, and the clinician should confirm that such records were reviewed. No additional examination of the Veteran is necessary unless the reviewing clinician determines otherwise. After review of the record, the reviewing clinician is asked to respond to the following: (a.) For any cervical and thoracolumbar spine disabilities present since August 2013, including spondylolisthesis, scoliosis, T8 compression fracture, cervical degenerative arthritis, and kyphosis: 1. Is it at least as likely as not that the condition had its onset in or is otherwise related to service, to include the documented December 1974 skull trauma and July 1975 report of back pain and lumbar strain? 2. Is it at least as likely as not that the condition was caused by the Veteran's service-connected bilateral knee strain, right foot tendonitis, post-concussive headaches, and/or traumatic brain injury residuals? 3. Is it at least as likely as not that the condition was aggravated by the Veteran's service-connected bilateral knee strain, right foot tendonitis, post-concussive headaches, and/or traumatic brain injury residuals? 4. If scoliosis is identified as a congenital disease, is it at least as likely as not that such disease was aggravated (worsened beyond natural progression) by service. (b.) For any bone, hip, and left foot disabilities present since August 2013, including osteoporosis, osteopenia, bilateral osteoarthritis of the hips, and the left foot disability conceded by the Board in its April 2021 remand: 1. Is it at least as likely as not that the condition was caused by the Veteran's service-connected bilateral knee strain, right foot tendonitis, post-concussive headaches, and/or traumatic brain injury residuals? 2. Is it at least as likely as not that the condition was aggravated by the Veteran's service-connected bilateral knee strain, right foot tendonitis, post-concussive headaches, and/or traumatic brain injury residuals? 3. With respect to the left foot disability, is it at least as likely as not that it had its onset in or is otherwise related to service? In addressing these questions, the reviewing clinician must address the Veteran's lay statements, including his February 2014, June 2015, and April 2016 statements, as well as his October 2015 DRO testimony. Please assume the Veteran's statements are true and determine, based on the same, whether a nexus between the Veteran's disabilities and service are "medically plausible." For the purposes of this opinion, the reviewing clinician is to apply the proper aggravation standard, which is that any degree of worsening of a condition by a service-connected condition is sufficient to establish aggravation in this case. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After the above has been completed, readjudicate the claims. If the Veteran does not meet the criteria for a schedular TDIU, the AOJ must refer the Veteran's claim of entitlement to TDIU to the Director of the Compensation Service for extraschedular consideration. 3. Thereafter, if any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.