Citation Nr: 18159156 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 10-36 708 DATE: December 18, 2018 REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for bilateral upper extremity radiculopathy is remanded. Entitlement to service connection for bilateral lower extremity radiculopathy is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), as a result of an in-service personal assault or as secondary to lumbar and cervical spine disorders is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1965 to June 1968. 1. Entitlement to service connection for a cervical spine disorder and a lumbar spine disorder are remanded. The Board sincerely regrets having to remand this appeal another time. However, this remand is necessary to ensure compliance with the Board’s prior remand instructions, and to afford the Veteran all consideration due to him under the law. See Stegall v. West, 11 Vet. App. 268 (1998). In a June 2017 remand, the Board determined that a February 2017 VA examination report and opinion was inadequate to adjudicate the Veteran’s claims for service connection for a lumbar spine disorder and a cervical spine disorder. Specifically, the Board determined that the rationale provided by the February 2017 VA examiner was conclusory in nature, and it failed to reflect consideration of the Veteran’s competent lay statements concerning his alleged in-service injury and the onset and continuity of symptoms following the injury. Thus, the Board directed the agency of original jurisdiction (AOJ) to obtain an addendum opinion, requiring the examiner to accept as true for the purposes of the opinion that the Veteran’s statements regarding his in-service injuries and observed pain symptoms were credible. In September 2017, the Veteran underwent a new VA examination. The examiner noted the Veteran’s reported in-service fall from a 12-foot ladder when he injured both his neck and low back, as well as his reports of ongoing and worsening pain. Ultimately, the examiner opined that the Veteran’s lumbar spine and cervical spine disorders were less likely than not related to his reported in-service injury. The examiner reasoned that he had “no documentation other than vet’s word,” and no documentation until subsequent treatment for each respective disability, years later. As pointed out by the Veteran’s representative in an October 2018 Written Brief Presentation, the examiner was instructed to assume the Veteran’s statements were credible. It is unclear whether the examiner did so in this case. Even if the examiner did assume the injury as reported by the Veteran occurred, and that the Veteran had back and neck pain since service, the negative nexus remains unsupported by rationale other than lack of documentation in the file. When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To ensure that any opinion provided is based upon a review of all pertinent evidence, to include the Veteran’s lay statements concerning the onset and continuity of symptoms, the Board finds that a new examination is necessary. On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through July 2017, are currently of record. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent records. 2. Entitlement to service connection for bilateral upper extremity radiculopathy, bilateral lower extremity radiculopathy, and an acquired psychiatric disorder are remanded. As noted in the July 2017 remand, the issues of entitlement to service connection for bilateral upper and lower extremity radiculopathy, as well as the issue of entitlement to service connection for an acquired psychiatric disorder, are inextricably intertwined with the Veteran’s claims for service connection involving his lumbar and cervical spine disorders. See Parker v. Brown, 7 Vet. App. (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, these issues must also be remanded. The matters are REMANDED for the following action: 1. Associate any VA treatment records dated from July 2017 to the present with the Veteran’s claims file 2. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. The Veteran should be afforded a VA examination to determine whether his currently-diagnosed lumbar spine and cervical spine disorders had their onset during or are otherwise related to his military service, to include his reported in-service fall from a 12-foot ladder. The record and a copy of this Remand must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of his claimed disabilities. Following a review of the entire record, the examiner should address the following question: Is it at least as likely as not (i.e., a 50 percent or greater probability) that any lumbar spine disorder and/or cervical spine disorder had its onset during, or is otherwise related to, his active duty service, to include his reported in-service fall from a 12-foot ladder? The examiner should specifically identify whether neurological disabilities of the upper and lower extremities (claimed as radiculopathies) exist, and whether they are at least as likely as not related to the Veteran’s cervical spine or lumbar spine disabilities respectively. If the Veteran no such disability exists, such a finding should be reconciled with prior assessments noting the Veteran’s complaints of radiating pain, and radicular symptoms. In offering any opinion, the examiner must consider and discuss the Veteran’s competent lay statements, and assume such statements are credible for purposes of the opinions. If there are medical reasons calling into question the credibility of the Veteran’s reported history, the examiner should discuss these reasons in detail. A clearly-stated rationale for any opinion offered should be provided, and must not be based solely upon the absence of treatment in the Veteran’s service treatment records, or years thereafter. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should specifically explain why this is so from a medical perspective after consideration of the Veteran’s documented and reported medical history. 4. Thereafter, and after any further development deemed necessary, the appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel