Citation Nr: 0918967 Decision Date: 05/20/09 Archive Date: 05/26/09 DOCKET NO. 05-32 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to separate ratings for any neurological disorders associated with the Veteran's service-connected lumbar spine disability (other than peripheral neuropathy of the right lower extremity). 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to service-connected lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from May 1991 to May 1996 and November 1996 to August 1998. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In November 2007, the Board remanded these claims for additional development. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board sincerely regrets another remand of this matter, the development directed by the Board in its last remand was not accomplished. Where the remand orders of the Board or the Courts 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, 271 (1998). In the August 2004 remand, the RO/AMC was directed to afford the Veteran a VA examination, obtain a nexus opinion for peripheral neuropathy of the right lower extremity and to determine if any neurological disorders are associated with the Veteran's service-connected lumbar spine disability. The examiner was instructed to opine whether any current right lower extremity problems are at least as likely as not due to the Veteran's time in service or at least as likely as not due to or aggravated by the Veteran's service-connected back disability, with particular instructions to review service treatment records where the Veteran complained of right leg pain and cramping. Additionally, the examiner was asked to identify any neurological symptoms or abnormal objective neurological findings that are at least as likely as not attributable to the Veteran's service-connected back disability, including loss of sensation, loss of motor function, radiculopathy and bladder or bowel impairment secondary to degenerative disc disease of the spine. The Veteran was afforded a VA examination in September 2008. The examiner stated the Veteran had urinary frequency, erectile dysfunction, numbness, paresthesia, leg or foot weakness, falls, and unsteadiness. The etiologies of these symptoms were reported as not unrelated to the claimed disability; however, the examiner stated some of the symptoms were from medications. The examiner should identify which symptoms, if any, are at least as likely as not attributable to the Veteran's service connected back disability. No nerve conduction studies were completed during this examination. An addendum to the examination consisted of the examiner stating they could not resolve the issue without mere speculation and a neurological evaluation including a magnetic resonance imaging (MRI) as well as electromyography (EMG) studies was recommended. The examiner stated the Veteran's pain may well be related to his back disability, but the increase in radiation and weakness should be explored more thoroughly. The Veteran underwent an EMG study in February 2009. Nerve conduction studies were performed on the right and left peroneal and tibial motor nerves. The Veteran was diagnosed with mild generalized polyneuropathy. An addendum opinion was then obtained in February 2009. The examiner discussed the EMG study, conducted in February 2009, and stated that an MRI scan revealed mild lumbar spondylosis L5-S1, but no canal stenosis. It is unclear what MRI scan the examiner is referring to in the discussion as the attached EMG report does not contain this language. The examiner stated he did not believe the Veteran suffers from lumbar radiculopathy because the Veteran's MRI does not show impingement on the nerves. The examiner opined that the Veteran's neuropathy is most likely idiopathic. The examiner concluded that the Veteran does have L5 sprain/strain, but does not have evidence of radiculopathy causing mild generalized polyneuropathy. Although the examiner gives an opinion to the etiology of the neuropathy, the examiner did not opine whether any current right lower extremity neuropathy is at least as likely as not due to the Veteran's time in service or at least as likely as not aggravated by the Veteran's service-connected back disability. The examiner gave no opinion as to whether the Veteran's neurological symptoms of loss of sensation, bladder impairment, falls, unsteadiness, and erectile dysfunction are at least as likely as not attributable to the Veteran's service-connected back disability. The Court has found that a medical opinion is inadequate when it does not address all aspects of a claim when the medical examiner is directed to do so by the Board. Stefl v. Nicholson, 21 Vet. App. 120 (2007). A remand is required when an inadequate medical opinion is provided following a Board remand. Id. Accordingly, the case is REMANDED for the following actions: 1. The claims file should be returned to the examiner who provided the opinion in February 2009. If necessary, or if this person is unavailable, or does not possess the necessary expertise to provide an opinion that adequately addresses the requested information, ask another examiner to render the requested opinion. If determined necessary by the examiner, schedule the Veteran for an examination. The examiner is instructed to: a.) Indicate the origin of the MRI discussed in the February 2009 opinion. b.) Assign any diagnoses relevant to the right lower extremity and opine whether any current right lower extremity problems are: at least as likely as not due to the Veteran's time in service or; at least as likely as not due to or aggravated by the Veteran's service-connected back disability. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. c.) The examiner is further requested to identify any neurological symptoms or abnormal objective neurological finds which are at least as likely as not attributable to the Veteran's service-connected back disability. These include loss of sensation, loss of motor function, radiculopathy and bladder or bowel impairment secondary to degenerative disc disease of the spine. If neurological abnormality such as partial paralysis is present in an extremity, the examiner should classify it as mild, moderate, or severe. If the neurological symptoms are due to some other cause, i.e., medications, state to what extent they are caused by each etiology, and what the medications are for, if possible. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed, including service treatment records. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. 2. The RO/AMC must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completion of the above, the RO/AMC should review the expanded record, and determine if the benefits sought can be granted. If the issues remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2008).