Citation Nr: 1003167 Decision Date: 01/21/10 Archive Date: 02/01/10 DOCKET NO. 05-14 195A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a disability manifested by numbness of the legs, claimed as secondary to serviced- connected mechanical low back pain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E.B. Joyner, Counsel INTRODUCTION The Veteran served on active duty from June 1985 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, in part, denied entitlement to service connection for numbness of the legs, claimed as secondary to service-connected mechanical low back pain. When the case was last before the Board in September 2008, it was remanded for additional development. Historically, the Board notes that in October 1994, the Veteran filed a claim for entitlement to service connection for "numbness of legs due to back." In a March 1995 rating decision, the RO denied entitlement to service connection for numbness in legs as secondary to the service-connected disability of mechanical low back pain. The Veteran received notice of this decision by letter dated in April 1995. Thereafter, in February 1996, the Veteran submitted a VA Form 21-4138, which states, "I would like to reopen my claim for disability on my back. I am having problems with my back which is also causing numbness and tingling in my right arm and in my legs. I claimed these same conditions while on active duty and now I'm back at the doctors with the same problems." He went on to state, "I feel that my condition is very serious. I also believe that my condition is service-connected and directly related to my present claim on disabilities with the VA. . . ." Although this letter was received within one year of the April 1995 letter notifying the Veteran of the denial of service connection for numbness of the legs, the RO did not address this statement, insofar as it pertains to the denied claim for entitlement to service connection for numbness in the Veteran's legs. Then, in an April 2003 VA Form 21-4138 (considered to be the current claim for entitlement to service connection for numbness of the legs), the Veteran wrote, "I am still having the same problems with my back, that caused the numbness and tingling in my right arm and both legs. I claimed these same conditions before, and now, I am being seen by doctors at the VA Hospital in Memphis." This claim has been considered as an original claim for entitlement to service connection for numbness of the legs as secondary to the service-connected mechanical low back pain. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board notes that in the prior January 2008 and September 2008 remands, the Board instructed the AOJ to obtain a VA examination and/or a medical opinion by a neurologist. Specifically, in the January 2008 remand, the Board instructed the AOJ to schedule the Veteran for a neurological examination by a neurologist to determine the nature and etiology of the Veteran's claimed leg numbness. The remand instructed that all indicated tests, including electromyograph (EMG) and nerve conduction velocity, should be undertaken. For any diagnosed disability, the VA examiner was requested to opine whether the current leg numbness is at least as likely as not related to (caused or aggravated by) the service-connected mechanical low back pain. Although the Veteran underwent a VA examination in February 2008, that examination report was determined to be inadequate for adjudication purposes. Notably, the requested medical opinion was not provided. Therefore, the claim was again remanded in September 2008 for an addendum opinion. Specifically, the September 2008 remand requests that the VA examiner who conducted the February 2008 examination review the claims file and opine whether the current leg numbness is at least as likely as not related to (caused or aggravated by) the service-connected mechanical low back pain. The examiner was also requested to opine whether the condition noted on examination (slightly altered sensation in the Veteran's thigh, mostly on the right side), which the examiner opined "may be related to the superficial femoral cutaneous nerve or a mild for of meralgia paraesthetica," is at least as likely as not related to (caused or aggravated by) the service-connected mechanical low back pain. In a November 2008 addendum, the February 2008 VA examiner provided the following opinion: ". . . the Veteran's peripheral neuropathy and his complaint of meralgia paraesthetica is not likely secondary to his service- connected mechanical back pain. The peripheral neuropathy and possibly the meralgia paraesthetica is more likely secondary to his diabetes mellitus." While further delay is regrettable, the case must be remanded again. Initially, the Board points out that the January 2008 Board remand requested that the VA examination be conducted by a neurologist. Unfortunately, the February 2008 VA examination was performed by a physician's assistant. Additionally, the requested opinion was whether any current leg numbness is caused or aggravated by the service-connected mechanical low back pain. However, neither the VA examination report nor the addendum addresses whether the current leg numbness is aggravated by the service-connected mechanical low back pain. Moreover, the Board observes that no nerve conduction studies or other tests were performed during the examination, and no explanation for the absence of such tests was given. 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). Therefore, a new VA examination, conducted by a neurologist, must be performed. Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule the Veteran for a VA neurological examination, by a neurologist, to determine the nature and etiology of any currently present leg numbness. He is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences for his claim. The claims folder, to include a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies and tests should be accomplished (to include EMG/nerve conduction studies), and all clinical findings should be reported in detail. Based upon the claims folder review, the examination results and sound medical principles, the examiner should provide an opinion with respect to any currently present disability manifested by leg numbness, as to whether it is at least as likely as not (ie., a 50 percent or better probability) that the disability is caused by or aggravated by (permanently worsened the underlying disorder beyond normal progression of the disorder) the service-connected mechanical low back pain. If the examiner finds that the disability manifested by leg numbness is aggravated by the service-connected mechanical low back pain, the examiner should quantify the degree of aggravation if possible. The examiner should discuss the Veteran's complaints of radiating pain down the right leg as well as related numbness and tingling during service, and post-service private medical records diagnosing the Veteran with lumbar neuritis in 2006- 2007, as compared to the diagnosis of diabetes mellitus in March 2003. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 2. Then, after any other indicated development is completed, the AOJ should readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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. 2009). _________________________________________________ A. BRYANT 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) (2009).