Citation Nr: 1805798 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-14 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected sciatic nerve disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1980 to March 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2012 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the RO denied the Veteran's claim of entitlement to TDIU as part of a March 2016 rating decision. In September 2016, the RO continued its denial of the Veteran's claim of entitlement to TDIU. The Veteran submitted a notice of disagreement with the RO's denial that same month. To date, the RO has not provided the Veteran with a statement of the case SOC as to this claim. The Board will remand the claim back to the RO for the issuance of a statement of the case. See Manlicon v. West, 12 Vet. App. 238 (1999). The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected sciatic nerve disability. An October 2011 VA treatment record notes that imaging of the Veteran's back revealed degenerative disc disease affecting his lumbar spine. The examiner responsible for an April 2012 VA examination to determine whether the Veteran suffered form degenerative disc disease of the lumbar spine as a result of his service-connected sciatic nerve disability opined that the Veteran's lumbar spine degenerative disc disease was not the result of his service-connected disability because "it is not known to occur due to sciatic nerve injury. Rather, sciatic nerve injury usually occurs secondary to low back DDD and/or DJD." The examiner also opined that the Veteran's lumbar spine degenerative disc disease was likely due to "use of his back during the course of his life." The author of an April 2013 private medical opinion letter that discussed the relationship between the Veteran's service-connected sciatic nerve disability and his lumbar spine degenerative disc disease noted that "the findings on [the Veteran's] x-rays are of fairly routine degeneration for age." The author of the private medical opinion letter opined that "[o]ther factors do contribute including the abnormality of his gait. It is possible that as a result of his damaged sciatic nerve and altered gait that there is an increased level of pain than otherwise would have been for this degeneration." A February 2014 VA examination examined whether the Veteran's service-connected sciatic nerve disability aggravated his lumbar spine degenerative disc disease. The author of a corresponding report opined that the Veteran's service-connected sciatic nerve disability did not aggravate his lumbar spine degenerative disc disease beyond the natural progress of that disability. The examiner noted that the sciatic nerve is "soft tissue," and stated that the Veteran's sciatic nerve disability "could not result in, or aggravate the L-spine [bone tissue] of the central skeletal system." The inquiry at hand is whether the Veteran's service-connected sciatic nerve disability is responsible for any increase in the severity of the non-service connected degenerative disc disease affecting the Veteran's lumbar spine. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The medical evidence of record does not adequately address this issue. The April 2012 examination does not discuss the issue of aggravation. See id. The April 2013 private medical opinion letter, with its use of the word "possible," is too equivocal to substantiate the Veteran's claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). The opinion provided as part of the February 2014 VA examination report lacks a rationale. Remand is necessary to obtain a medical opinion that adequately discusses the relationship between the Veteran's service-connected sciatic nerve disability and his lumbar spine degenerative disc disease. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a veteran for a medical examination where it deems an examination necessary to make a determination on the veteran's claim); Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary). The RO should also obtain any VA treatment records not already contained in the Veteran's claims file. See 38 U.S.C. § 5103A. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any VA treatment records not already of record. 2. Obtain an addendum medical opinion that addresses the relationship between the Veteran's service-connected sciatic nerve disability and his lumbar spine degenerative disc disease. It is up to the opinion provider to determine whether another examination is required. The opinion provider is requested to review the claims file, to include this remand, and respond to the following question: Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's lumbar spine degenerative disc disease was aggravated by (i.e., any worsening of the disability beyond its natural progression) the Veteran's service-connected sciatic nerve disability? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. In response to the Veteran's September 2016 notice of disagreement, furnish the Veteran and his representative with a statement of the case relating to the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability. 4. Readjudicate the claim on appeal. If any benefit sought on appeal remains denied, then furnish the Veteran and his representative with a supplemental statement of the case and allow him an opportunity to respond. The Veteran has the right to submit additional evidence and argument on remanded matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). Remanded matters must be handled expeditiously. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board of Veterans' Appeals can be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C. § 7252. This remand is a preliminary order and not an appealable decision. 38 C.F.R. § 20.1100(b) (2016).