Citation Nr: 1615471 Decision Date: 04/15/16 Archive Date: 04/26/16 DOCKET NO. 12-21 747 ) ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a stroke and related residuals, to include as secondary to degenerative joint disease of the lumbar spine with radiculopathy of the right lower extremity (low back disability). REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION This Veteran served active duty from December 1960 to November 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois denying entitlement to service connection. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2015. A copy of the transcript from that hearing has been associated with the claims file. This case was remanded to the Agency of Original Jurisdiction (AOJ) in a July 2015 remand decision for additional development. The case has now again been certified to the Board for review. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The Board has also considered documentation included in the Virtual VA system in reaching the determination below. Accordingly, any future consideration of this case should take into consideration the existence of these electronic records. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Unfortunately, due to reasons that follow, a remand is required. Although the Board regrets this delay, it is necessary to ensure the Veteran is afforded the due process and claim assistance he is entitled to. When the Board remands a claim to the RO it has a duty to ensure substantial compliance with the directives contained in that remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Additionally, with regard to the provision of VA examinations, such examinations must be adequate to assist the Veteran in adjudication of his claim. Barr v. Nicholson, 21 Vet App. 303, 311 (2007). Such a medical examination is adequate when it describes the disability in sufficient detail such that the examiner's evaluation of the disability is "fully informed." Id. A medical examination is "fully informed" when the examiner has sufficient facts upon which to base an opinion relevant to the issue at hand. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Here, the July 2015 remand decision directed the AOJ to schedule the Veteran for a VA examination, diagnose the Veteran's stroke residuals, and provide an etiology opinion as to the underlying cause of the Veteran's stroke residuals. Specifically, the AOJ was directed to provide the following two opinions: (1) whether it is at least as likely as not that the Veteran's stroke residuals are proximately due to the Veteran's service-connected low back disability; and (2) whether it is at least as likely as not that the Veteran's stroke residuals have been aggravated by his service-connected low back disability. In providing the latter, the Board directed the examiner to consider the Veteran's lay statements at his April 2015 Board hearing, at which he had testified that when he experienced his stroke he felt it across his low back. The AOJ scheduled the Veteran for an examination in October 2015. A review of the examination report reveals that the examiner identified the residuals of the Veteran's stroke as upper right-side (upper and lower extremity) weakness and mild functional impairment. However, as a rationale for the negative opinions provided, the examiner stated that the Veteran clearly had had degenerative joint disease of the lower back with radiculopathy before he had the sudden onset of his January 2009 stroke, and therefore had two separate and independent etiologies of right lower and right upper extremity weakness and pain (degenerative joint disease and cerebral vascular accident); and that the right upper extremity weakness is from the January 2009 stroke but then on top of that he also had cervical spine disk conditions adding to the weakness of his right upper extremity. The Board finds that this rationale is inadequate to explain the conclusion that it was "not likely" that the Veteran's stroke residuals have been aggravated by his service-connected low back disability. Accordingly, remand of this claim is required for an addendum opinion. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Return the Veteran's claims file to the VA examiner who conducted the October 2015 stroke residuals examination to provide a supplemental opinion. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. a. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b. The examiner must provide opinions as to the following: i. Whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's stroke residuals were aggravated beyond their natural progression by his service-connected low back disability. 1. In providing this opinion, the examiner should address the Veteran's lay statements of record regarding the nature and course of his back disability and his stroke. c. The examiner must provide a complete rationale for his or her opinion, in the examination report. If the above requested opinion cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 2. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. After undertaking any necessary additional development, readjudicate the issue on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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 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 2014). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).