Citation Nr: 18142971 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 10-38 078 DATE: October 17, 2018 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a bilateral hip disability, to include as secondary to a low back disability, is remanded. Entitlement to service connection for a bilateral leg disability, to include as secondary to a low back disability, is remanded. INTRODUCTION The Veteran served on active duty from August 1971 to September 1974. This case was previously before the Board in September 2017. On that occasion, the Board found that new and material evidence had been received in connection to the Veteran’s claim for service connection for a low back disability, and as such the claim was reopened. In addition, the issues of entitlement to service connection for a low back disability, bilateral hip disability, and bilateral leg disability were remanded for further development. The Veteran testified at a Travel Board hearing in April 2012 before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. During the course of the appeal, the undersigned Veterans Law Judge, who conducted the April 2012 hearing, became unavailable and a letter was sent to the Veteran in February 2012 notifying him of such and affording him the opportunity for another hearing. The Veteran responded in February 2013 that he wished to appear at another Board hearing. The Veteran failed to appear at the rescheduled hearing. However, the Veteran’s Law Judge who conducted the initial hearing has taken jurisdiction over the appeal and is the undersigned on this decision. REASONS FOR REMAND The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions and supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, a medical examiner is not free to simply ignore a veteran’s lay statements recounting symptoms or events and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for a low back disability. The Veteran seeks service connection for a low back disability, which he contends originated in service and continues to the present. At his April 2012 hearing, the Veteran alleged that his low back disability is the result of his duties as a supply specialist, which involved frequent heavy lifting, bending, and twisting. He also reported having an in-service accident in 1973 when he slipped and fell, injuring his back. Although the Veteran did not recall receiving in-service treatment for his back condition, he alleged his back problems began in 1974, shortly after his separation from service. Further, he stated he started receiving treatment for his back condition around 1978 at the Dallas VA Medical Center. Moreover, the Veteran contends his low back disability has progressively worsened and resulted in his current hip and lower extremities conditions, which include pain and numbness. The medical evidence of record reflects the Veteran has a current diagnosis of lumbar spine degenerative disc disease and lumbar radiculopathy. In this regard, the Board notes a February 2013 MRI of the lumbar spine revealed moderate to severe spinal stenosis with crowding of nerve roots centrally; bilateral foraminal stenosis; and protruding disc material contacting the right L4 nerve, which could account for radicular symptoms. Further, a May 2013 electromyography (EMG) and nerve conduction study revealed evidence of bilateral lumbar radiculopathy at L5/S1 and peripheral polyneuropathy affecting the bilateral lower extremities. The Board also observes the Veteran had a lumbar decompression surgery in November 2013. Pursuant to the Board’s September 2017 remand, the Veteran was afforded a VA thoracolumbar spine examination in October 2017. The examiner stated the Veteran had a diagnosis of chronic lumbar degenerative disease without current radicular symptoms and opined this condition was less likely than not related to service. As rationale for this opinion, the examiner stated that the medical history indicated the onset of the Veteran's back condition was in the late nineties. Further, the examiner noted the Veteran’s service treatment records showed no back injuries or treatment while in active military service. Finally, the examiner opined the Veteran's current lumbar degenerative disease was not worse than anticipated based on age alone. The Board finds the October 2017 examination report and opinions are inadequate for adjudication purposes. First, the examiner did not address the Veteran’s current diagnosis of lumbar radiculopathy and the May 2013 abnormal EMG and nerve conduction study. For VA purposes, the requirement that there be a current disability is satisfied when the disability is shown proximate to the time of filing the claim for service connection or during the pendency of that claim, even though the disability subsequently resolves. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 303 (2013). Second, in determining the onset of the Veteran’s low back disability, the examiner failed to adequately address the Veteran’s statements regarding the onset and continuity of his low back symptoms. Additionally, the examiner’s onset determination is not supported by the record. Notably, VA treatment records dated November 1990 indicate the Veteran had a history of marked lumbar lordosis, chronic low back pain, and nerve problems, which had been treated “for years” by VA. Further, February 1986 VA treatment records reflect reports of numbness and tingling of the bilateral lower extremities. Finally, the examiner failed to provide an adequate rationale for his opinion that the Veteran's current lumbar degenerative disease was not worse than anticipated based on age alone. Notably, the examiner did not address the Veteran’s February 2013 lumbar spine MRI and November 2013 lumbar surgery. In light of the foregoing, the Board finds the claim must again be remanded to obtain an adequate VA examination. 2. Entitlement to service connection for a bilateral hip and bilateral leg disability, to include as secondary to a low back disability. The issues of entitlement to service connection for a bilateral hip and bilateral leg disability are inextricably intertwined with the remanded issue of entitlement to service connection for a low back disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (finding that where a decision on one issue would have a “significant impact” upon another, and that impact, in turn, could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two claims are inextricably intertwined). Thus, the Board finds that the issues of entitlement to service connection for a bilateral hip and bilateral leg disability should be remanded as well. A remand is also required to obtain outstanding VA treatment records, as well as records in the possession of the Social Security Administration (SSA). As stated above, the Veteran testified he began receiving treatment for his back condition at the Dallas VA Medical Center approximately in 1978. These treatment records have not been associated with the claims file. Further, the record indicates the Veteran was scheduled for an SSA physical examination in January 2010 in connection to his back, legs, and hip conditions. Additionally, a September 1978 SSA request of VA medical records indicate the Veteran had a disability claim before the SSA at that time. However, the SSA disability determinations and the records associated with such determinations have not been associated with the Veteran’s file. The Board notes that the above-described VA and SSA records could be supportive of the Veteran’s claims, and as such, the Agency of Original Jurisdiction (AOJ) must take appropriate action to obtain those records. The matters are REMANDED for the following action: 1. The AOJ must undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to specifically include the above-described VA treatment records, as well as any recent or additional treatment records related to the claimed disabilities. The AOJ must also take appropriate action to obtain a copy of any SSA disability determination for the Veteran, as well as a copy of the records associated with any such determination. If any requested records are not available, the file should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. After the completion of the foregoing, the AOJ must schedule the Veteran for a VA examination by a clinician with sufficient expertise to diagnose and determine the nature and etiology of the Veteran’s low back disability. All pertinent evidence of record (to include all information under reasons for remand noted above) must be made available to and reviewed by the examiner. Any required studies should be performed, and all clinical findings should be reported in detail. Based on a review of the evidence of record, lay statements, and examination results, the examiner should state an opinion as to whether any diagnosed low back disability was at least as likely as not (a 50 percent probability or greater) incurred in service, or is otherwise etiologically related to his active service, to specifically include as a result of his duties as a supply specialist. For the purposes of this opinion, the examiner should note the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including events and symptoms. If there is a medical basis to support or doubt the history provided by the veteran, the examiner should provide a fully reasoned explanation. The examiner must provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case. Further, the examiner must state whether the inability to provide the required opinions is based on a personal limitation or on a lack of knowledge among the medical community at large. (Continued on the next page)   3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to service connection for a bilateral hip and bilateral leg disability. If the benefit sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel