Citation Nr: 1817656 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-38 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a left leg disability, initially claimed as sciatica of the left lower extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from April 2008 to April 2013. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Denver, Colorado Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veteran's Law Judge during a June 2016 videoconference hearing. A transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction. VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the additional delay, this claim must be remanded for additional development. VA has a duty to assist veterans in securing evidence necessary to substantiate their claims. 38 U.S.C. §§5103A (2012); 38 C.F.R. § 3.159(c) (2017). In that regard, VA must make as many requests as are necessary to obtain relevant records from a Federal department or agency, including VA medical facilities or non-VA facilities providing examination or treatment at VA's expense. 38 C.F.R. § 3.159(c)(2). In addition, VA must make reasonable efforts to obtain records not in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c). Here, a remand is required to obtain outstanding records relevant to the Veteran's claim. At his June 2016 hearing, the Veteran testified that he sought treatment from a chiropractor shortly after separating from service while he continued to suffer from a leg disability that he incurred during service. However, a review of the claims file indicates that VA has not obtained these records. The only related document of record is a letter from the chiropractor dated October 2014 confirming that the Veteran was being treated for a chronic back condition that severely limited his daily activities. Similarly, the Veteran indicated that he received treatment for his leg disability from the VA hospital in Denver. Although voluminous VA treatment records have been obtained, very few relate to the Veteran's back or leg conditions. Since these outstanding private and VA treatment records are highly relevant to the Veteran's claim, a remand is required to obtain them. A remand is also required to obtain an additional VA examination. VA's duty to assist includes obtaining a medical examination or medical opinion when it is necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d). Furthermore, when VA undertakes to provide an examination or opinion, it must ensure it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this regard, a medical opinion is inadequate if the examiner does not consider the Veteran's competent reports of experiencing an illness or injury in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). It may also be inadequate if it is based on an incomplete record. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). Here, the Veteran was provided VA examinations in August 2013 and September 2014, but neither is adequate to decide the claim. In August 2013, the Veteran was examined for "low back condition, sciatica condition, left lower extremity," and the examiner concluded that there was no objective evidence of any thoracolumbar spine condition. A new VA examination was ordered following a May 2014 Deferred Rating Decision in which the RO determined that a recent x-ray of the Veteran's lumbar spine showed degenerative changes. In the September 2014 VA examination that followed, the examiner determined that the Veteran suffered from multi-level degenerative disc disease and degenerative joint disease of the lumbosacral spine, and borderline grade II spondylolisthesis at L5-S1 without evidence of radiculopathy. Although the examiner took note of the Veteran's reports of numbness and pain in his legs, she did not provide any comment on the relationship between the Veteran's back condition and the leg symptoms he was experiencing. Furthermore, she did not review or comment on the Veteran's claims file, to include the Veteran's January 2013 separation examination that reveals he was recently diagnosed with lumbar radiculopathy during service and continued to suffer from it at separation. Accordingly, a new examination is required that will consider the Veteran's lay statements regarding his leg disability and the injuries he sustained in service that he continued to suffer from as late as January 2013. Moreover, at his June 2016 hearing, the Veteran remarked that medical providers have told him there is a relationship between his back condition and the pain and numbness in his legs. This raises the theory of entitlement to service connection on a secondary basis and, as such, the VA examination that follows should consider whether any current leg disability is caused or aggravated by the Veteran's service-connected back condition. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of any outstanding VA records pertaining to the Veteran's treatment for any back conditions or leg disabilities. The evidence obtained, if any, should be associated with the claims file. 2. Contact the Veteran and obtain the provider name, address, and approximate date of treatment for any additional records that he would like VA to obtain regarding his leg disability, to include records from Carmichael Chiropractic Associated Spine Specialists, LLC. Obtain all records adequately identified by the Veteran, and for which the Veteran has signed the appropriate releases, and associate them with the claims file. If any identified records are not obtainable (or none exist), the Veteran should be notified and attempts to acquire those records should be documented in the claims file. 3. Once the aforementioned development is complete, schedule the Veteran for an examination with a qualified VA examiner to clarify the nature of any current left leg disability or disabilities and/or sciatica of the lower left extremity. The claims file, including a copy of this Remand, must be made available to and reviewed by the examiner and such review must be noted in the examination report. The examiner must do the following: (a) Clarify whether the Veteran has a current left leg disability or disabilities and/or sciatica impacting the lower left extremity. (b) For each current disability identified, opine whether it is at least as likely as not (50 percent possibility or greater) that the disability began during or was caused by the Veteran's active duty service, or manifested within one year of service separation. (c) Opine whether it is at least as likely as not (50 percent possibility or greater) that the Veteran's service-connected degenerative joint and disc disease of the lumbosacral spine caused any currently diagnosed left leg disability and/or sciatica of the left lower extremity. (d) Opine whether it is at least as likely as not (50 percent possibility or greater) that the Veteran's service-connected degenerative joint and disc disease of the lumbosacral spine aggravated any currently diagnosed left leg disability and/or sciatica of the left lower extremity. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the medical professional should indicate, to the extent possible, the approximate level of disability present (i.e., a baseline) before the onset of the aggravation. The examiner must consider the Veteran's assertions, including those in his June 2016 testimony, that he currently experiences numbness and pain in his legs. The examiner is advised that the Veteran is competent to report observable symptomatology, and that his lay statements should be presumed to be credible for the purposes of this examination only. The examiner is also asked to consider the Veteran's in-service diagnosis of lumbar radiculopathy and the Veteran's reports that he experienced numbness in his left leg during service. If the same condition is not identified as a current disability at the examination, explain how it resolves. A complete rationale must be provided for all opinions. If the medical professional cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this Remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the claim. If any benefit sought in connection with the remanded claim is denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).