Citation Nr: 21070380 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-48 116 DATE: November 23, 2021 REMANDED The claim for service connection for a low back disability, to include as secondary to service-connected rheumatoid arthritis (claimed as osteoarthritis), is remanded. The claim for a compensable disability rating for bilateral hearing loss is remanded. The claim for a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from March 1966 until her honorable discharge in March 1968. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from a February 2017 decision by the Newark, New Jersey, Regional Office of the United States Department of Veterans Affairs (VA). In May 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Board remanded these claims to the VA Regional Office in August 2019, in December 2020, and most recently in June 2021. The Board finds that there still has not been substantial compliance with the Board's previous remand directives regarding the issues on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, remand is required. In addition, new medical evidence of record raises new issues that also require remand. 1. The claim for service connection for a low back disability, to include as secondary to service-connected rheumatoid arthritis (claimed as osteoarthritis), is remanded. The Veteran asserts her low back disability is secondary to her service-connected rheumatoid arthritis. In the Board's June 2021 Remand Order, it directed the VA Regional Office to obtain an addendum opinion addressing the Veteran's secondary service-connection theory. The VA Regional Office accomplished this directive, obtaining an addendum opinion dated July 22, 2021. The examiner opined that the Veteran's low back disability was not caused or aggravated by her rheumatoid arthritis because she does not have rheumatoid arthritis. Therefore, secondary service connection is not available. The examiner, instead, found that she has osteoarthritis. The Board observes the Veteran's October 2016 claim listed "osteoarthritis" as the disability for which she sought service connection. In a February 2017 decision, a VA Regional Office recharacterized her claim as one for "rheumatoid arthritis (claimed as osteoarthritis)." In an August 2019 decision, the Board awarded service connection for rheumatoid arthritis only, making no mention of osteoarthritis. At this point, it remains entirely unclear to the Board whether the Veteran's service-connected rheumatoid arthritis is actually better characterized as ostearthritis, a diagnosis that the Veteran's recent VA medical records and VA examiner acknowledge that she has. Or, perhaps, her rheumatid arthritis includes her diagnosis of ostearthritis. It may be that VA has erred in its characterization of her disability. Accordingly, the Board finds remand is required to obtain a retrospective opinion addressing whether the Veteran's rheumatid arthritis should have been characterized as osteoarthritis, or if it includes her osteoarthritis. If so, an addendum opinion will be necessary to address the Veteran's low back disability as secondary to osteoarthritis. 2. The claim for a compensable disability rating for bilateral hearing loss is remanded. In the Board's December 2020 and June 2021 Remand Orders, it directed the VA Regional Office to obtain the full audiometry results from an October 15, 2019, VA audiology examination. This has not been accomplished. The associated October 15, 2019, audiogram is not of record. The October 15, 2019, VA Audiology Note states an audiogram is available under the "TOOLS" display. There is no record of the audiogram in the Veteran's claims file. Thus, remand is required to obtain it. 3. The claim for a total disability rating based on individual unemployability is remanded. As the grant or denial of service connection for the Veteran's low back disability, and decision as to the severity of her service-connected bilateral hearing loss may reasonably affect the adjudication of her claim for a total disability rating based on individual unemployability (TDIU), the Board finds these issues to be inextricably intertwined, and entitlement to TDIU must be remanded pending completion of development for the other claims. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Associate with the Veteran's claims file, the October 15, 2019, audiogram identified within the October 15, 2019, VA Audiology Note. If necessary, contact the VA audiologist who conducted the exam at the Brick, New Jersey, Community Based Outpatient Clinic, to obtain the audiogram. All steps taken to obtain the audiogram and any associated test results must be documented within the Veteran's claims file. If the audiogram and any associated test results are unavailable, a formal finding must be made and associated with the Veteran's claims file. 3. Obtain an opinion from an appropriately qualified clinician who is asked to provide a retrospective opinion addressing whether the Veteran's service-connected rheumatoid arthritis was misdiagnosed and/or mischaracterized at the time of service connection, and whether the Veteran's diagnosis at the time of service connection should have been ostearthritis rather than rheumatoid arthritis. 4. Based on the opinion obtained in directive #3, the VA Regional Office must determine whether the Veteran's service-connected rheumatoid arthritis should be recharacterized as service-connected osteoarthritis, or whether the Veteran's service-connected rheumatoid arthritis should include a diagnosis of osteoarthritis. 5. If the VA Regional Office determines that the Veteran's service-connected rheumatoid arthritis should be recharacterized as service-connected osteoarthritis, or includes a diagnosis of ostearthritis, then it must obtain an opinion from an appropriately qualified clinician who is asked to provide an opinion addressing secondary service connection, that is: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed low back disability was caused by (proximately due to or as the result of) her ostearthritis? (b.) Whether it is at least as likely as not(a 50 percent probability or more) that the Veteran's currently diagnosed low back disability was aggravated by her ostearthritis? 6. After the completion of the foregoing development, as well as any other development deemed necessary, readjudicate the claims on appeal, including the claim for an award of TDIU. 7. The VA Regional Office must ensure substantial compliance with all of the foregoing remand directives. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, Associate Counsel 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.