Citation Nr: 1802649 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-36 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a neck disorder, to include as secondary to a low back disability. 2. Entitlement to service connection for neuropathy and numbness of the left lower extremity, to include as secondary to a low back disability. 3. Entitlement to service connection for a right hip disorder, to include as secondary to a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to July 1973, and he had additional active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) service in the Puerto Rico Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The claims were previously before the Board in February 2013 and June 2016 when they were remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded VA examinations pursuant to the most recent Board remand, but the opinions offered are inadequate. Therefore, the claims must be remanded to obtain adequate medical opinions. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the neck disorder, in August 2016 the VA examiner rendered an opinion with regard to whether the Veteran's cervical degenerative disc disease with spondylosis was directly related to his military service. However, the examiner did not render an opinion as to whether the neck disability was caused or aggravated by his service-connected back disability. Following the examination for neuropathy and numbness of the left lower extremity, the examiner rendered the opinion that lower extremity neuropathy is less likely as not related to service. Service treatment records were noted to be silent for any lower extremity neuropathy diagnosis and the Veteran's peripheral neuropathy (right and left posterior tibial nerve) was diagnosed in May 2007. In a follow up opinion in March 2017, the examiner restated that lower extremity neuropathy is less likely as not related or aggravated by service. Again the examiner noted that service treatment records were silent for any lower extremity neuropathy and the Veteran's peripheral neuropathy diagnosis was rendered in May 2007. The examiner reported that this was several years after service. The examiner further opined that that lower extremity neuropathy was less likely as not related or aggravated by service-connected lumbar condition. The rationale was that the Veteran was service connected due to lumbar spine degenerative disc disease and medical evidence does not support a finding that lumbar spine degenerative disc disease could cause or aggravate bilateral lower extremity neuropathy. The examiner stated that the conditions were pathophysiologically and anatomically unrelated to each other. The medical opinion is inadequate because the rationale does not sufficiently explain why the lower extremity neuropathy could not be caused or aggravated by the Veteran's service-connected back disability. In particular, there is no explanation of any distinction between the Veteran's neuropathy and any neurologic disorder (i.e., radiculopathy) that may be associated with degenerative disc disease and separately compensated. With regard to the right hip, the VA examiner noted that the Veteran was diagnosed with right hip tendonitis. However, after examination the examiner stated that, based on a review of the record and examination, there was no clinical and objective evidence of a right hip condition. Thereafter, the examiner stated that the service treatment records were silent for treatment, diagnosis, or follow up, and that the Veteran's current hip condition began after active military and for this reason the condition was unrelated to service. An addendum VA medical opinion was obtained in March 2017. The examiner rendered the opinion that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the rationale the examiner noted that the Veteran had been assessed with iliotibial band syndrome with possible trochanteric bursitis in January 2008. The current condition dated to 2016, years after active duty. The examiner stated that there was no evidence of continuity of treatment for the condition claimed at least within 2 to 3 years after being released from active service. The examiner stated that based on record review and examination there was no clinical and objective evidence of a right hip condition while on active military service and that the current hip condition dated from 2016, years after active military and for this reason the condition was unrelated to service. The examiner rendered the opinion that the Veteran's hip condition and spine disorder were different disease entities with different pathophysiological process unrelated other at different anatomical position. The Veteran's lumbar condition affected the osseous structure of the spine while current right hip condition was an extra articular lesion. Medical literature was noted to not support a causal relationship between the conditions. The medical opinions are inadequate. The first examination report appears internally inconsistent in identifying a right hip disorder and then indicating that there was no disability. In addition, although the examiner reported no causal relationship between the Veteran's low back disability and his right hip disability, the examiner does not provide an opinion on whether the Veteran's service connected low back disability has aggravated or aggravates the Veteran's right hip disability. Review of the claims file reveals that the Veteran receives VA treatment. Treatment records up to April 2017 have been obtained and associated with the claims file. On remand attempt to obtain and associate with the claims file VA treatment records regarding the Veteran that are dated since April 2017. See 38 C.F.R. § 3.159 (2017). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file complete VA treatment records regarding the Veteran dated since April 2017. Any additional pertinent records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Thereafter, forward the claims file to an appropriate VA medical examiner(s) to obtain medical opinions regarding the etiology of the Veteran's neck disorder and neuropathy and numbness of the left lower extremity. The claims file and copies of all pertinent records should be made available to the examiner(s) for review. If the examiner(s) determines that an opinion cannot be provided without an examination(s), the Veteran should be scheduled for an examination(s). Based on a review of the record, the examiner should address the following: (i) Is it at least as likely as not that the Veteran's neck disorder and/or neuropathy and numbness of the left lower extremity was incurred in or related to service? (ii) Is it at least as likely as not that the Veteran's neck disorder and/or neuropathy and numbness of the left lower extremity is due to or aggravated by his service-connected degenerative disc disease of L5-S1? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. In answering the questions, the examiner must consider, and discuss as necessary, the prior examinations. With regard to the claim for neuropathy and numbness of the left lower extremity, the examiner must discuss any distinction between the Veteran's neuropathy and a neuropathy that may be associated with degenerative disc disease. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion 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. 3. Thereafter, the Veteran should be afforded the appropriate VA examination to determine the etiology of the Veteran's right hip disorder. The claims file must be made available to the examiner for review in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. Based on examination and review of the record, the examiner should address the following: (i) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's right hip disorder was incurred in or aggravated by service? (ii) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's right hip disorder was caused by or aggravated by the Veteran's degenerative disc disease of L5-S1? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. In answering the questions, the examiner must consider, and discuss as necessary, the prior examinations. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion 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. 4. Then, readjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).