Citation Nr: 1319413 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 06-21 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for S1 radiculopathy of the left lower extremity, to include as due to service-connected degenerative joint disease (DJD) of the lumbar spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from May 1984 to July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board remanded the Veteran's case in August 2010. The remand sought additional development, to include asking the Veteran to identify any claim he had before the Social Security Administration (SSA). He was also to be asked to identify any source of outstanding treatment records and be afforded an examination. The AMC conducted some of the requested development. There is no clear evidence that the Veteran was asked about his SSA claim or that SSA was contacted. VA treatment records, for the period from July 2006 to August 2010, were obtained. The Veteran was afforded a VA examination in January 2012. The examiner provided an opinion that the Veteran's diagnosed meralgia paresthetica was not related to his service-connected DJD of the lumbar spine. The examiner provided an addendum to her opinion in April 2012. She stated that, at the present time, she did not have any medical evidence indicating that the Veteran had a left S1 radiculopathy. She also stated that the Veteran had not had an electromyography (EMG)/nerve conduction velocity (NCV) test of the left lower extremity. The AMC issued a supplemental statement of the case (SSOC) in April 2012. Evidence considered by the AMC consisted of the additional VA treatment records and VA examination report. The case was returned to the Board. The Board remanded the case again in September 2012. The Board sought any outstanding treatment records. The Board also requested a VA examination, to include EMG/NCV testing. The AMC obtained additional VA treatment records for the period from August 2010 to February 2013. The records are included in the Veteran's electronic records in Virtual VA. The AMC also scheduled the Veteran for an examination. The Veteran failed to report for the examination. The AMC contacted the Veteran in February 2013. He said he was unaware of the scheduling of the examination. He is reported to have said he did not want the examination to be rescheduled as he did not want to undergo the requested testing as it was painful. He asked that his case be decided. The AMC issued a SSOC in February 2013. The SSOC included an extensive listing of evidence considered in the case. The list of evidence comprises nearly two complete pages. Upon review, it appears that much of the evidence cited by the AMC is not included in the Veteran's claims folder. Nor is the evidence included in the Veteran's electronic records in Virtual VA. The Board notes that the SSOC references evidence received from the SSA; however, there is no identifiable evidence from the SSA in the claims folder or in the Veteran's electronic records in Virtual VA. There are also multiple references to documents that would appear to relate to claims for other issues. This conclusion is supported from a reading of evidence considered in several rating decisions included in Virtual VA. The Board must review and consider evidence that has been considered by the agency of original jurisdiction in evaluating the Veteran's claim for service connection. Therefore, a remand is required to obtain the outstanding evidence. Also, since the content of the outstanding evidence is not clear at this time, the Veteran should be offered another opportunity for an examination. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his claimed radiculopathy since 2012. The AMC/RO should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. 2. The AMC/RO must review the list of evidence cited in the SSOC of February 2013. Any evidence listed in the SSOC that is not contained in the claims folder or Virtual VA must be included either in the claims folder or Virtual VA. Of particular note are any records from SSA. 3. Only upon completion of all of the above requested development should the Veteran be afforded a VA examination. Providing the examination prior to the completion of the other development may result in an additional remand as the requested records must be obtained and available for the examiner to review. The claims folder and a copy of this remand must be provided to the examiner and reviewed as part of the examination. Any medical records relied on by the examiner must be included in the claims folder or be available through Virtual VA. All indicated studies, tests and evaluations deemed necessary by the examiner should be performed. The results of such must be included in the examination report. The Board notes that the Veteran previously declined a VA examination as EMG/NCV testing was ordered in a prior remand. He objected to the testing as he said it was painful. Should the examiner determine that such testing is required with the current examination; the Veteran should be given the option of whether to have the testing. If the Veteran declines the testing, the examiner should then state whether an opinion can be provided in this case absent such testing. The examiner is advised that the Veteran is seeking service connection for S1 radiculopathy of the left lower extremity. His claim is based on direct service connection as well as secondary to his service-connected DJD of the lumbar spine. The examiner is requested to identify whether there is evidence of S1 radiculopathy at any time during the pendency of this claim from April 2004 to the present. If so, the examiner is also asked to express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed S1 radiculopathy of the left lower extremity is related to the Veteran's military service. If the examiner finds that there is S1 radiculopathy of the left lower extremity, but that it is not related to the Veteran's military service, the examiner is requested to provide an opinion as to whether it at least as likely as not that the S1 radiculopathy of the left lower extremity is 1) caused by the Veteran's service-connected DJD of the lumbar spine; or 2) if not caused by the DJD of the lumbar spine, is the S1 radiculopathy of the left lower extremity aggravated by the Veteran's service-connected DJD of the lumbar spine. A complete rationale for any opinion expressed must be provided. 4. After the requested medical opinion evidence is obtained, the report should be reviewed to ensure it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner. See Stegall v. West, 11 Vet. App. 268 (1998). Failure to ensure the adequacy of the examination reports may result in another remand. 5. After undertaking any other development deemed appropriate the AMC/RO should re-adjudicate the issue on appeal. If the benefit sought is not granted, the Veteran, and his representative, should be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the AMC/RO. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the AMC/RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________________________ MICHAEL MARTIN 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) (2012).