Citation Nr: 18157489 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 17-02 539 DATE: December 12, 2018 REMANDED Entitlement to service connection for low-back disorder is remanded. Entitlement to service connection for residuals of right-leg injury is remanded. Entitlement to service connection for residuals of left-leg injury is remanded. Entitlement to a total disability evaluation based upon individual unemployability, due to service-connected disabilities (TDIU), is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from January 1972 to December 1974 and from July 1975 to July 1979. 1. Entitlement to service connection for low-back disorder. 2. Entitlement to service connection for residuals of right-leg injury. 3. Entitlement to service connection for residuals of left-leg injury. 4. Entitlement to a TDIU. As a point of clarification, the Board’s review of the record indicates that the Veteran filed is first claims for service connection for low-back pain, right-leg pain and left-leg pain in June 1980. An October 1980 rating decision denied these claims. The record does not show that the Veteran filed a Notice of Disagreement with that decision and it became final. A February 1996 rating decision denied reopening these claims for failure to submit new and material evidence sufficient to reopen. However, as the Board understands the subsequent record, in January 2011, the Veteran filed new claims for the matters now on appeal. The Statement of the Case notes that the claims are considered reopened and thereafter considered the matter on the merits. The Board agrees and will do likewise. The April 2013 notification letter for the April 2013 rating decision denying the claims identified the claims as such by noting the January 2011 filing date. In the Veteran’s first VA examination for low-back disorder in August 1980, scoliosis was identified yet lumbosacral spine was described as normal. An October 1980 rating decision denied the back and leg claims, as these disorders were “not shown by the evidence of record.” The decision further found scoliosis of the spine is a congenital, developmental abnormality and therefore not ratable. An October 2012 VA examination for thoracolumbar spine, after noting associated right-leg radicular symptoms, produced a negative opinion for the Veteran’s current back disorder, as not being “related to the military or scoliosis,” noting first that no scoliosis was not found on that day’s x-rays, then explaining that the Veteran was treated in-service for lumbosacral strain, it was aggravated beyond its natural progression, but there was no such aggravation for scoliosis. It is not clear what rationale was used to conclude there was aggravation of an in-service strain. In the February 2013 VA examination, the VA examiner opined that right-leg pain was more likely than not related to the Veteran’s lumbar spine disorder. In his April 2013 addendum opinions, the VA examiner opined negatively on the Veteran’s current low-back disorder, noting earlier in-service low back strain and at separation “low back syndrome,” but explaining that there was no further treatment of a back disorder until approximately 21 years after discharge from active service. The VA examiner further opined that right-leg radicular symptoms are not related to military service and are more likely than not related to low-back disorder. He explained that the record provides no evidence of treatment for any leg injury and bilateral leg disorders are not related to the accident reported by the Veteran. The April 2013 rating decision denied the claims as showing no link to military service, no event, disease or injury in service, no aggravation from a service-connected disability, and no current diagnosed left-leg disorder. The foregoing shows conflicting evidence, as the October 2012 VA examiner found in-service aggravation of the low-back disorder and the April 2013 VA examiner, not addressing that issue at all, opined only that there was no connection of low-back disorder and right-leg disorder to active service. In order to reconcile these opinions, to clarify with greater precision issues of aggravation and to address sufficiently the etiology of any bilateral leg/thigh disorders, a new VA examination is necessary. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for low-back disorder and bilateral leg/thigh disorders at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. Additionally, contact the Veteran’s representative and request clarification, with specific reference to the representative’s June 7, 2018 correspondence to the Regional Office (RO), of whether that correspondence, in seeking a VA examiner’s comments on whether aggravation of the Veteran’s congenital spinal contouring has prevented his ability to work, is for the purpose of a instituting a pension claim or is meant in fact to re-institute the claim of entitlement to a TDIU, which the representative, on the Veteran’s behalf, had withdrawn in his statement accompanying the April 2014 VA Appeals Form 9. It this is to be a claim for non-service connected pension benefits, such claim should be filed on an appropriate form. 3. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for an examination conducted by a VA examiner with an appropriate specialty for producing findings for low-back and leg/thigh disorders. The complete electronic claims file must be made available to the examiner in conjunction with the examinations. The examiner should detail all findings. The examination should provide findings and diagnoses as to the nature, extent and current severity of the low-back disorder and the bilateral leg/thigh disorders. The examiner is further requested to render opinions, addressing the following: (a) Whether it is more likely than not (more than a 50 percent probability) or less likely than not (less than a 50 percent probability) that the Veteran’s low-back disorder is proximately due to or a result of a service-connected disease or injury and not due to its own natural progression. (b) Whether it is more likely than not (more than a 50 percent probability) or less likely than not (less than a 50 percent probability) that the Veteran’s scoliosis, was increased in disability due to a super-imposed injury incurred during active service. (c) Whether there are residuals consistent with leg and/or thigh injuries incurred during active service, separate and apart from any neurological symptoms associated with the Veteran’s low-back disorder. The opinions must be explained by an adequate rationale, by which the examiner’s conclusions are supported by direct references to clinical findings made on examination, to the Veteran’s treatment records and/or to medical literature. Additionally, the examiner is specifically requested to review the October 2012 VA examination and opinion, the February 2013 VA examination and the April 2013 addendum opinions and reconcile the October 2012 opinion with the April 2013 opinions. The examiner should comment on the findings and opinions of other examiners, which appear in the record. In addition, the examiner should acknowledge, address, consider, and discuss all lay evidence in the record pertaining low-back disorder and bilateral leg/thigh disorders, including the Veteran’s lay statements, any lay statements of his wife, other family members, friends, co-workers, or others, as well as the Veteran’s reports to providers, as they appear throughout the record. Findings should be reconciled with other records on file to the extent possible. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Franke, Associate Counsel