Citation Nr: 1804370 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-03 301 ) 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 low back disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for neurological impairment of the bilateral lower extremities, to include as secondary to a low back disability or due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1950 to September 1970 with combat service in Korea and the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In January 2014, the Veteran requested to appear before the Board at a videoconference hearing. The hearing was scheduled for October 2015 and the Veteran was notified of the time and place of the hearing in a September 2015 letter. On October 15, 2015, he withdrew his request for a hearing in accordance with 38 C.F.R. § 20.704(e). The Board will therefore proceed with this case without a hearing. This appeal was previously before the Board in August 2016 and was remanded for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the prior remand the Board directed the AOJ to schedule the Veteran for VA examinations with etiological opinions for his lumbar and cervical spine disabilities and lower extremity peripheral neuropathy. The Veteran was provided the requested VA examinations in September 2016, however, as described below, the Board finds the accompanying medical opinions to be inadequate. A. Cervical Spine Disability The Veteran's September 2016 cervical spine VA examination includes a Medical History portion in which the VA examiner acknowledges that the Veteran has claimed that since his noted in-service injury to his neck and back he has "had some pain in his neck and back but only since about 10 years ago has the pain and stiffness become worse." The opinion provided by the VA examiner regarding direct service connection for the Veteran's cervical spine disability was that the Veteran's cervical spine disability "was less likely than not incurred in or caused by the by the claimed in-service injury, event or illness." As rationale the examiner states that the Veteran's statements were taken into account but that the review of the service treatment records (STRs) do not document in-service or post-service, within the first several years following separation, complaints of neck pain, and there was no evidence at the time of separation of any neck disability. The examiner also acknowledge some documented neck in-service pain but attributed it to the Veteran's in-service infectious mononucleosis. Finally, the examiner pointed out that the Veteran did not begin reporting neck pain "more than 40 years after separation from the military service" and therefore "the findings on the diagnostic studies done are at least as likely as not related to his natural process of ageing. The Board finds that this opinion is inadequate and does not substantially comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically the Board directed the VA examiner to accept as true that the Veteran sustained an in-service neck injury as the result of a fall and did not seek treatment due to the nature of deployment. The VA examiner's opinion is based, in part, on the lack of documented injury and complaints of neck pain in-service, at the time of separation, or shortly thereafter. Furthermore, despite acknowledging the Veteran's claims of experiencing neck pain since service with the symptoms only increasing in severity within the last 10 years, the examiner relies on the fact that the Veteran's documented neck pain claims come well after his separation from service. Thus an addendum opinion is required. B. Lumbar Spine Disability The Veteran also underwent a VA examination for his claimed lumbar spine disability in September 2016 and an opinion was provided that it was less likely than not that the Veteran's lumbar spine disability was incurred in or caused by his in-service lumbar spine injury. While the examiner did acknowledge, and appeared to accept as true, the Veteran's reported in-service lumbar spine injury, he based his opinion on the lack of evidence of continued complaints or treatment of lumbar spine pain in the years following separation from service. However, the examiner did not discuss the Veteran's report of having residual lumbar pain since the in-service injury which only became worse in the last ten years, despite this statement being documented in a concurrent VA examination . As a result the Board finds this opinion to be inadequate. Stegall, 11 Vet. App. at 268. C. Lower Extremity Peripheral Neuropathy The Veteran underwent a VA examination for his bilateral lower extremity neuropathy in September 2016. The VA examiner opined the Veteran's neuropathy is less likely as not incurred in or caused by the Veteran's service because there was "no evidence in the Veteran's ...lower [extremities] during service or [the] year thereafter." Additionally the examiner provided that "peripheral nerves disease is not associated to traumas, but rather to systemic conditions (usually)." The VA examiner was specifically asked to opine whether the Veteran's neuropathy was etiologically related to his conceded herbicide exposure. The examiner opined that the Veterans bilateral lower extremity neuropathy was not related to herbicides because it was not diagnosed in 2009. The Board notes that service connection for peripheral neuropathy on a presumptive basis due to herbicide exposure, requires that the neuropathy manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides. 38 C.F.R. §§ 3.307(a)(6) , 3.309(e). However, failure to meet the requirements of service connection on a presumptive basis does not preclude consideration of service-connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The VA examiner did not provide an adequate direct service connection opinion with regard to the conceded exposure to herbicide in the September 2016 examination. Thus an addendum opinion is needed to adequately address service connection, to include as due to herbicide exposure, on a direct basis. 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. Contact the VA examiner (or, if unavailable, another medical professionals with appropriate expertise) who examined the Veteran in the September 2016 cervical spine examination and request an addendum opinion. The entire claims file should be made available to and reviewed by the examiner. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate VA medical examination. Based on review of the record (and examination if conducted), the examiner should address the following: The examiner should answer and render an opinion as to whether the evidence of record demonstrates that it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's cervical spine disability, diagnosed as cervical arthritis and degenerative disc disease, is etiologically related to any incident of active duty service, to include the injury in 1970. The examiner must consider and discuss, and accept as true, the Veteran's report of ongoing neck pain since service. The examiner must also consider and discuss the Veteran's reports of injury to his cervical spine in early 1970 in Vietnam after falling down several stairs. The examiner should accept as true the Veteran's report that he did not seek treatment for the injury because of the circumstances of his combat service. 2. Forward the Veteran's claims file to the examiner who completed the September 2016 lumbar spine VA examination for an addendum opinion. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on review of the record (and examination if conducted), the examiner should address the following: The examiner should answer and render an opinion as to whether the evidence of record demonstrates that it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's lumbar spine disability is etiologically related to any incident of active duty service, to include the injury in 1970. The examiner must consider and discuss, and accept as true, the Veteran's report of ongoing low back pain since service. The examiner must also consider and discuss the Veteran's reports of injury to his lumbar spine in early 1970 in Vietnam after falling down several stairs. The examiner should accept as true the Veteran's report that he did not seek treatment for the injury because of the circumstances of his combat service. 3. Contact the VA examiner (or, if unavailable, another medical professionals with appropriate expertise) who examined the Veteran in the September 2016 peripheral neuropathy examination and request an addendum opinion. The entire claims file should be made available to and reviewed by the examiner. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate VA medical examination. Based on review of the record (and examination if conducted), the examiner should address the following: (a). The examiner should answer and render an opinion as to whether the evidence of record demonstrates that it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's bilateral lower extremity peripheral neuropathy is etiologically related to his known exposure to herbicides in Vietnam. (b). The examiner should answer and render an opinion as to whether the evidence of record demonstrates that it is at least as likely as not (probability of 50 percent or greater) that the Veteran's bilateral lower extremity peripheral neuropathy was caused by the Veteran's lumbar spine disability. (c). If the answer to (b) is no, is it at least as likely as not (probability of 50 percent or greater) that the Veteran's bilateral lower extremity peripheral neuropathy was aggravated by his lumbar spine disability? A full rationale for any expressed medical opinions must be provided. 4. Upon completion of the above, readjudicate the claim. If the benefits sought on appeal remain denied, issue the Appellant and her representative a supplemental statement of the case and provide an opportunity to respond. The Veteran 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 (West 5). _________________________________________________ M.E. LARKIN 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) (2017).