Citation Nr: 18132255
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 08-24 176
DATE:	September 6, 2018
REMANDED
Entitlement to service connection for lumbar disability is remanded.
Entitlement to a total disability rating by reason of individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from March 1977 to October 1977.  
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.
These matters were remanded by the Board in March 2012 and again August 2017 for further development.  The matters have been returned to the Board for appellate consideration.
1. Entitlement to service connection for lumbar disability is remanded.
Regrettably, a review of the record reveals that the claim must again be remanded for additional development prior to appellate consideration.
Where, as here, VA undertakes to provide an examination or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”).
In its August 2017 remand, the Board instructed the Agency of Original Jurisdiction (AOJ) to, in pertinent part, obtain a medical opinion as to the nature and etiology of the Veteran’s lumbar disability.  Pursuant to the Board’s remand, an addendum opinion was obtained in October 2017.  At that time, the examiner opined that it is less likely than not that the Veteran’s lumbar disability was incurred in or caused by service.  In doing do, the examiner indicated there is no evidence in the Veteran’s service treatment records (STRs) of a diagnosis for and/or treatment of any back condition during service.  No further opinion or rationale was provided.
Consequently, an additional addendum opinion was obtained in January 2018.  At that time, the examiner reiterated his opinion that it is less likely than not that the Veteran’s lumbar disability was incurred in or caused by service.  In doing so, the examiner expressly indicated that he reviewed all of the evidence of record including the Veteran’s STRs, post-service VA and medical treatment records, and lay statements by the Veteran and other sources.  The examiner reiterated that there is no evidence of a lumbar injury, diagnosis, treatment, or symptoms associated with a lumbar disability in service.  Further, the examiner opined that the Veteran’s lumbar disability is clearly due to interceding events that occurred after separation from the military.  No further opinion or rationale was provided.
First, the examiner’s statement that there is no evidence of a lumbar injury, diagnosis, treatment, or symptoms associated with a lumbar disability in service is inconsistent with the evidence of record.  See generally Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely” (citations omitted)).  Specifically, the Veteran’s STRs dated in April 1977 clearly reflect that on at least one occasion, the Veteran sought treatment for lumbar back pain.  The Veteran’s assertions regarding a lumbar injury in service is further strengthened by several statements of support.  Id.  It is not clear whether this evidence would change the examiner’s opinion, but given he apparently did not consider it, the Board finds a remand is necessary to obtain an addendum opinion
Next, the examiner’s statement that the Veteran’s lumbar disability is clearly due to “interceding events” without further explanation as to what those interceding events are necessitates the Board to make assumptions and draw inferences as to the examiners reasoning.  See Bolton, supra; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions).  Moreover, the examiner’s statement seemingly disregards the reported presence of symptomatology such as lumbar pain preceding the unspecified “interceding events.”  In light of the foregoing, the Board finds a remand is necessary to obtain an addendum opinion.
2. Entitlement to TDIU is remanded.
Given the above determination, the Board finds that it must remand the issue of entitlement to a TDIU as inextricably intertwined with the Veteran’s claim for lumbar disability, as the adjudication of this issue may affect the Veteran’s eligibility for schedular TDIU.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (stating two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).
The matters are REMANDED for the following action:
1. Arrange for an appropriate medical professional to prepare an addendum opinion as to the nature and etiology of any claimed lumbar disability, and if deemed necessary, conduct a new examination of the Veteran.
The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report.  Following a review of the claims file and medical history, the VA examiner should offer an opinion as to the following:
(a.) Does the Veteran have a lumbar disability?  
(b.) If so, the examiner should identify the specific disability and offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is caused by, or otherwise etiologically related to active military service?
Any opinion rendered should reflect consideration of the symptomatology described by the Veteran and documented in the Veteran’s STRs, and discuss the significance, if any, of multiple post-service motor vehicle accidents (MVAs).
The examiner must provide a rationale for all opinions provided.  If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.
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2. Thereafter, readjudicate the issues on appeal.  If the benefits sought on appeal remain denied, issue a supplemental statement of the case and provide the Veteran and his representative with an opportunity to respond.  Then return the case to the Board, if otherwise in order.
 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Kalolwala, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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