Citation Nr: 21070476 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-38 274A DATE: November 24, 2021 REMANDED Entitlement to an increased rating for cervical spine disability is remanded. Entitlement to an increased rating for thoracolumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1975 to March 1979. The Department of Veterans Affairs (VA) is grateful for his service. In December 2018, December 2020, and June 2021, the Board remanded the matters for further development and the claims have been returned for appellate consideration. 1. Entitlement to an increased rating for cervical spine disability is remanded. 2. Entitlement to an increased rating for thoracolumbar spine disability is remanded. In its December 2020 remand, the Board instructed that addenda were required to the examinations conducted in January 2020 or that new examinations should be obtained. The December 2020 remand instructions included directing the examiner to address the impact of medications taken to treat the Veteran's cervical spine and thoracolumbar spine, due to the Veteran's self-report that when he took pain medication for his cervical and thoracolumbar spine conditions to assist with sleep, this resulted in sleepiness and driving impairment the following day. A December 2020 examiner had failed to address these questions, and accordingly the Board remanded the claims again in June 2021 for them to be addressed. Obtained examinations in August 2021 at first erroneously addressed issues of a link to service despite service connection for these disabilities already having been established. A further request for an addendum as the Board had requested, for impacts of medication taken for the disabilities, which was to consider the Veteran's own statements about such impacts, resulted in the examiner simply stating that the examiner "cannot speculatively determine a more specific response" than that "[p]ain medication taken for [each disability] such as opioids and muscle relaxers taken by the [Veteran], might cause drowsiness, fatigue and lethargy." The examiner explained that a more specific response could not be provided because "each person's response to medications of all types can be different and vary." This amounts to a non-response with respect to the specific effects of the Veteran's medications on his functioning. The Board had instructed that the examiner was to specifically document and consider the Veteran's own statements of effects of his medications, and the examiner certainly could have done so and then considered whether the Veteran's treatment records and other evidence and medical knowledge about the medications in question support the Veteran's assertions of effects of the medication. The examiner does not appear to have done this beyond simply noting the detail contained within the examination instructions that the medications had reportedly resulted in sleepiness and driving impairment the following day. The examiner thus failed to address the nature and severity of any adverse effects of the Veteran's medications for his service-connected disabilities. Remand is regrettably again warranted due to this failure. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, in an appellate brief submitted in October 2021, the Veteran's representative argued, "With a history of TBI, taking pain medication to the point of feeling intoxicated the next morning must be taken into consideration." However, the Veteran is not service-connected for traumatic brain injury (TBI). Accordingly, the question of whether the Veteran wishes to file a claim for service connection for TBI is implicitly raised, and such claim, if raised, must be considered as inextricably intertwined with the claims for increased rating the subject of appeal. The Court has held that a claim which is inextricably intertwined with another claim which remains undecided and pending before the VA must be adjudicated prior to a final order on the pending claim, so as to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As of March 24, 2015, VA no longer recognizes informal claims. As of that date, a claimant, or certain other individuals as specified in section 3.155(b), may indicate a claimant's intent to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in 38 C.F.R. § 3.160(a), appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b). It is unclear from the representative's mention of TBI whether the Veteran intends to file a claim for TBI, or whether this was merely as misstatement on the part of the representative. This should be clarified, and if an intent to file is received, then the Veteran should be afforded the opportunity to file a formal claim and to develop that claim, and that claim should be adjudicated, so that the question of whether a service-connected TBI impacts the effect of medication taken for the claimed disabilities may be appropriately considered by an examiner, in furtherance of the appealed claims. Again, this is to avoid piecemeal adjudication. Harris, 1 Vet. App. at 183. The matters are REMANDED for the following actions: 1. The Veteran and his authorized representative must be contacted and asked to clarify whether, as suggested in the submitted October 2021 brief, they wish to express an intent to file a claim for service connection for TBI, or whether the statement about TBI in the October 2021 brief was merely a mistake. If an intent to file a claim for service connection for TBI is submitted, then the Veteran and his authorized representative should be afforded the opportunity to submit a formal claim. If a formal claim is received, it should be developed and adjudicated. 2. After remand instruction 1 is resolved (with any formal claim for service connection for TBI adjudicated), addenda should again be sought to the December 2020 VA examinations addressing cervical spine disability and thoracolumbar spine disability. The addenda should be by an examiner other than the one who provided addenda in August 2021 about effects of medication. The claims file should be reviewed, and any necessary tests or studies should be conducted. If an in-person examination is required, then one should be conducted. The examiner must also document and consider the Veteran's own statements regarding his disability, including his statements about the effects of medication, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should specifically consider the Veteran's testimony at his March 2018 hearing, as well as other statements of record, to assess the effects of medications taken for treatment of his cervical and thoracolumbar spine disabilities. The examiner should address the following: Separately to the extent possible, the examiner must address the nature and severity of effects on the Veteran and his functional capacities as a result of medications taken for pain control for the cervical spine disability and for the thoracolumbar spine disability, including specifically with regard to the Veteran's report of need to take pain medications for these conditions to assist with sleep, and resulting sleepiness and driving impairment the following day. The examiner must document and consider the Veteran's own statements to assess these effects of medications, and should consider whether these statements are supported by evidence of record (treatment records, medication changes, reported activities, etcetera) and medical knowledge (e.g., known side effects of prescribed medications). If traumatic brain injury (TBI) has been service-connected, the examiner should also consider whether such TBI plays a role in effects of prescribed medications for the cervical spine disability and lumbar spine disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]"38C.F.R. §4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 3. Thereafter, readjudicate the appealed claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.