Citation Nr: 18151093 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-23 354 DATE: November 19, 2018 REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to the Veteran's service-connected lumbar spine degenerative disc disease, is remanded. Entitlement to service connection for a left upper extremity neurological disability, to include left upper extremity radiculopathy and left upper extremity peripheral neuropathy, to include as secondary to exposure to herbicidal agents, is remanded. Entitlement to service connection for a left lower extremity neurological disability, to include left lower extremity radiculopathy and left lower extremity peripheral neuropathy, to include as secondary to exposure to herbicidal agents, is remanded. REASONS FOR REMAND Introduction The Veteran had honorable active duty service with the United States Army from April 1968 to November 1969. The Veteran is a Vietnam Era Veteran who served in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The jurisdiction of the file is currently with the RO in Indianapolis, Indiana. The appeal is REMANDED to the Agency of Original Jurisdiction. VA will notify the Veteran if further action is required. Remand VA’s duty to assist includes making reasonable efforts to obtain relevant evidence, such as obtaining relevant documents and providing a thorough and contemporaneous medical examination. 38 C.F.R. §§ 3.159(a)-(c) (2018). VA must provide an examination when the evidence shows: (1) A current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for the VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Once VA decides that it is appropriate to provide a VA examination, it must be an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The duty to assist further requires a VA examination where it is necessary to determine the current level of severity of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). 1. Entitlement to service connection for a cervical spine disability, to include as secondary to the Veteran's service-connected lumbar spine degenerative disc disease, is remanded. The Board first turns its attention to the Veteran’s claim for entitlement to service connection for a cervical spine disability. Although the Board sincerely regrets this delay, further development is required prior to adjudicating this claim. The Veteran received a VA examination in September 2011 to determine the etiology of his cervical spine disability. The examiner noted that the Veteran had the diagnoses of cervical spine degenerative disc disease and cervical spine spondylosis without myelopathy. The Veteran reported that his pain had developed over the prior four to five years. The VA examiner noted that it was less likely as not that the Veteran’s cervical spine disability is the direct result of, or was directly caused by, the Veteran’s lumbar spine degenerative disc disease. Specifically, the VA examiner stated that there appeared to be no direct link between the Veteran’s low back symptoms and his neck pain or his cervical spine conditions. The Board finds that this opinion is inadequate for a number of reasons. First, the VA examiner did not consider direct service connection. For a VA examination to be adequate, all theories of entitlement should be considered. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Moreover, the VA examiner did not consider the proper legal standard. The Veteran specifically asserted in his claim that he believed that his cervical spine disability was the proximate result of his service-connected lumbar spine degenerative disc disease. The proper legal standard for secondary service connection is whether a disability is caused or aggravated by the Veteran’s service-connected disability. See 38 C.F.R. § 3.310 (2018); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). As aggravation was not considered, the Board finds that the September 2011 VA examination is inadequate. As the September 2011 VA examination is inadequate for purposes of adjudicating this claim, a new VA examination should be scheduled upon remand. 2. Entitlement to service connection for a left upper extremity neurological disability, to include left upper extremity radiculopathy and left upper extremity peripheral neuropathy, to include as secondary to exposure to herbicidal agents, is remanded. The Board next turns its attention to the Veteran’s claim for service connection for a left upper extremity neurological disability, including as secondary to exposure to herbicidal agents. Although the Board sincerely regrets any delay that this may cause, further development is needed prior to adjudicating this claim. The Veteran received two VA examinations, one in September 2011 and one in February 2013. The purpose of the September 2011 VA examination was to determine the etiology and severity of the Veteran’s cervical spine disability. The VA examiner noted that the Veteran demonstrated mild radiculopathy of the left upper extremity, notably with hypoactive reflexes and mild radicular upper extremity paresthesia and numbness of the left upper extremity. A subsequent VA examination in February 2013, specific to neuropathy, diagnosed the Veteran as having numbness of the right upper extremity and bilateral hands. The examiner, however, did not find that the Veteran had any symptoms of the left upper extremity. The February 2013 examiner found normal strength and deep tendon reflexes throughout. A subsequent May 2014 VA examination, specific to peripheral neuropathy as causally related to exposure to herbicidal agents, found that the Veteran did not have an identifiable diagnosis of peripheral neuropathy. The Board finds that neither of these examinations is adequate to adjudicate the issue of a left upper extremity neurological disability. As to the September 2011 VA examination, while the examiner noted that the Veteran demonstrated mild radiculopathy of the left upper extremity, the examiner was opining as to the etiology of the Veteran’s cervical spine disability. As this issue is currently on remand, as outlined in detail above, the Board finds that the issue of service connection of any left upper extremity neurological symptoms is inextricable intertwined with the Veteran’s claim for service connection for a cervical spine disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that the final decision on one issue cannot be rendered until a decision on the other issues has been rendered). With regard to the February 2013 VA examination, the Board finds that this examination is inadequate. The VA examiner found that the Veteran exhibited no symptoms of the upper extremity and, as such, had no neurological diagnosis of the left upper extremity. This assessment, however, is inconsistent with the examiner’s diagnosis of numbness of bilateral hands. This is also inconsistent with the findings of the September 2011 examination, which noted that the Veteran expressed symptomatology of the left upper extremity. This statement was not addressed and the inconsistency was not reconciled. To be considered adequate, the VA examination must consider all of the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the Board notes that the Veteran’s last VA examination was in February 2013, over five years ago. The Veteran continues to complain of neurological symptoms of the left upper extremity. As such, the Board finds that another VA examination is warranted to determine the current disability status of the Veteran’s upper extremities. In light of the above, a new VA examination should be scheduled upon remand. 3. Entitlement to service connection for a left lower extremity neurological disability, to include left lower extremity radiculopathy and left lower extremity peripheral neuropathy, to include as secondary to exposure to herbicidal agents, is remanded. The Board now turns its attention to the Veteran’s claim for entitlement to service connection for a left lower extremity neurological disability, to include as secondary to exposure to herbicidal agents. Although the Board sincerely regrets any delay that this may cause, further development is needed prior to adjudicating this claim. The Board notes that the Veteran received a VA examination and a VA opinion to determine the etiology of his left lower extremity neurological disability. The Veteran received a VA examination in February 2013. The VA examiner noted that the Veteran had a diagnosis of right lower extremity numbness and bilateral foot numbness. The examiner noted that the Veteran did not have any left lower extremity symptoms. The examiner referenced electromyography the yielded normal results in the left lower extremity and abnormal in the right lower extremity. A VA opinion in May 2014, specific to peripheral neuropathy as causally related to exposure to herbicidal agents, noted that the Veteran did not have an identifiable diagnosis of peripheral neuropathy. The Board finds that the February 2013 VA examination is inadequate. The VA examiner reported that the Veteran had no left lower extremity symptoms. However, the examiner diagnosed the Veteran with bilateral foot numbness. These are inconsistent findings not reconciled within the VA examination. The Board notes that the February 2013 VA examiner referenced an electromyographic examination. However, a review of the claims file indicates that the report of the electromyogram has not been associated with the file. VA must make exhaustive efforts to obtain records in the custody of a Federal department or agency and reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. As such, upon remand, VA should make appropriate efforts to obtain these records and associated them with the file. Moreover, the Board notes that the last VA examination afforded the Veteran was February 2013, in excess of five years ago. The Veteran continues to complain of left lower extremity neurological symptoms. As such, a new VA examination is appropriate to determine the etiology of any current left lower extremity numbness. In light of the above, a new VA examination should be scheduled upon remand. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and all outstanding private treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Schedule the Veteran for an examination to determine the nature and etiology of his current cervical spine disability. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) Identify each of the Veteran’s cervical spine disabilities. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current cervical spine disability is causally or etiologically related to the Veteran’s military service. (c.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current cervical spine disability is either caused by or permanently aggravated by the Veteran’s service-connected lumbar spine degenerative disc disease and/or the Veteran’s service-connected radiculopathy of the right lower extremity. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of his claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Schedule the Veteran for an examination to determine the nature and etiology of his current left upper extremity and left lower extremity neurological disabilities. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. (a.) Identify each of the Veteran’s specific left upper extremity neurological disability. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current left upper extremity neurological disability is causally or etiologically related to the Veteran’s military service. (c.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current left upper extremity neurological disability is either caused by or permanently aggravated by the Veteran’s service-connected lumbar spine degenerative disc disease and/or the Veteran’s service-connected radiculopathy of the right lower extremity. (d.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current left upper extremity neurological disability is either caused by or permanently aggravated by the Veteran’s cervical spine disability. (e.) Identify each of the Veteran’s specific left lower extremity neurological disability. (f.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current left lower extremity neurological disability is causally or etiologically related to the Veteran’s military service. (g.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current left lower extremity neurological disability is either caused by or permanently aggravated by the Veteran’s service-connected lumbar spine degenerative disc disease and/or the Veteran’s service-connected radiculopathy of the right lower extremity. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of his claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones, 23 Vet. App. at 382. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel