Citation Nr: 21068390 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 15-22 056 DATE: November 10, 2021 REMANDED Entitlement to a rating in excess of 10 percent for residuals of right fifth metatarsal fracture is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from March 1990 to January 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a travel Board hearing. A copy of the transcript has been associated with the Veteran's electronic claims folder. All matters are remanded. In April 2021, the Board remanded the matters for further development, including obtaining medical opinions regarding the etiology of the Veteran's cervical spine disability and the current severity of the Veteran's right fifth metatarsal fracture. First, in a September 2021 medical opinion, the clinician opined that it was less likely than not that the Veteran's cervical spine disability was related to service. The clinician reasoned that based on medical records in 2009, it was "clear [the Veteran's] neck symptoms started sixteen year[s] after separation from military service." However, the clinician did not address other favorable evidence of record, including the Veteran's statements of continuity of symptoms, as noted in the Board's remand. The Agency of Original Jurisdiction (AOJ) failed to comply with the Board's remand in this regard. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"). Therefore, the Board finds that a remand is necessary to obtain an addendum medical opinion which addresses all favorable evidence. Second, the Board remanded the matter to obtain an examination which determined the current severity of the Veteran's right fifth metatarsal fracture. Specifically, the Board requested joint testing for pain on both active and passive motion. See Correia v. McDonald, 28 Vet. App, 158 (2016). The Veteran was afforded a VA foot examination in September 2021. However, there is no response to Question 14D. It is unclear if the examiner observed pain on both active and passive motion. Therefore, the Board finds that a remand is necessary to obtain an addendum opinion which addresses whether the Veteran experiences pain in passive or active motion; in weight-bearing or non-weight bearing. Third, the Veteran contends that his lumbar spine, right fifth metatarsal fracture and cervical spine injury prevent him from obtaining and maintaining substantially gainful employment. See May 2019 VA Form 21-8940. Accordingly, the claims for entitlement to service connection for a cervical spine disability; an increased rating for right fifth metatarsal and TDIU are inextricably intertwined. See Harris v. Derwinski,1 Vet. App. 180 (1991) (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). Therefore, the claim for a TDIU must be remanded pending the development and readjudication of the service connection and increased rating claims The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the September 2021 VA examiner (or a suitable substitute) regarding his cervical spine claim. The Veteran's electronic claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is requested to review the electronic claims file and offer an opinion as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's cervical spine disability was incurred in or is otherwise related to service. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's cervical spine disability was caused or aggravated by a service-connected disability, to include his service-connected lumbar spine disability. (c) If aggravation is found, provide the baseline manifestations and the increased manifestations due to a service-connected disability. The examiner is requested to address the following: (i) The Veteran's lay statements that he has suffered from neck pain for many years but did not seek treatment; (ii) The Veteran's February 1993 original claim for a back disability; (iii) the Veteran's history as a paratrooper; (iv) Dr. J.G.'s April 2012 medical opinion; and (v) Dr. B.S.'s November 2018 medical opinion. The rationale for an examiner's opinion must not be based solely on the absence of treatment records during and after service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). The Board is returning the matter because the September 2021 VA examiner did not address favorable evidence of record, including the Veteran's lay statements regarding continuity of symptoms. A complete rationale for all opinions reached must be provided. 2. Obtain an addendum opinion from the September 2021 VA examiner regarding the current severity of the Veteran's right fifth metatarsal fracture. If the examiner finds that another examination is necessary, schedule one. The examiner is requested to address whether the Veteran experiences pain in passive or active motion; in weight-bearing or non-weight bearing. See Correia, supra. 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Baskerville 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.