Citation Nr: 20004645 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 17-02 477 DATE: January 21, 2020 REMANDED Entitlement to service connection for a thoracolumbar spine disorder is remanded. Entitlement to service connection for radiculopathy of the lower right extremity is remanded. Entitlement to service connection for a cervical spine disorder, to include as secondary to a thoracolumbar spine disorder. is remanded. Entitlement to service connection for a right ankle disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2003 to March 2004. This matter comes to the Board of Veterans’ Appeal (Board) on appeal from an April 2012 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO). In October 2019, the Veteran presented testimony in a travel board hearing before the undersigned Veterans Law Judge (VLJ).   1. Entitlement to service connection for a lumbar spine disorder Remand is required for an adequate VA etiological opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran contends his thoracolumbar spine disability has been present since active service as a result of an in-service accident, as well as his Military Occupational Specialty (MOS) as a bridge crewmember that included wearing body armor and carrying gear. See October 2019 Board Hearing. In the Veteran’s January 2004 post deployment report, he stated a truck backed into him during the early part of his deployment. Several buddy statements corroborate the heavy duties of the Veteran’s MOS, including wearing a large amount of gear while jumping out of trucks, running across streets, and building bridges, and the vehicle they had to ride in was very bouncy and often caused tweaked backs or necks and jumping out of the vehicle involved a three-foot drop. An October 2019 buddy statement described that the Veteran was involved in a truck accident while in service that resulted in the death of one of their fellow servicemen. In a December 2016 VA examination, the examiner acknowledged the Veteran’s STRs indicating back pain after his deployment, but provided a negative nexus opinion, noting a lack of treatment for the back until 7 years after separation from service. But private treatment records in December 2005, less than two years from service discharge, note that the Veteran reported chronic episodic back pain. Thoracic spine strain was diagnosed. Thus, the examiner used inaccurate evidence to support the negative nexus opinion.   2. Entitlement to service connection for radiculopathy of the right lower extremity This issue must be remanded as it is inextricably intertwined with the issue of entitlement ot service connection for a thoracolumbar spine diosrder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). In a December 2016 VA examination, the examiner diagnosed radiculopathy in the lower right extremity due to involvement with the sciatic nerve and associated with the thoracolumbar spine disability. Accordingly, it is intertwined with the resolution of that issue. 3. Entitlement to service connection for a cervical spine disorder Remand is required for an adequate VA etiological opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr, 21 Vet. App. at 311. Where the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton, 21 Vet. App. at 39-40. The requirement of a current disability includes pain that causes functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). The Veteran testified at an October 2019 hearing testimony that he is unsure when he injured his neck, but believes it from the strain carrying heavy equipment, his helmet, or due to his back pain. A December 2016 VA examiner opined that it was less likely than not that the Veteran’s cervical strain had onset in or is otherwise related to his military service. The examiner focused on the lack of an established chronic neck condition and that the Veteran has not sought treatment for his neck since separation from active duty in 2004. However, the Board finds the examiner failed to address the Veteran’s lay statements, the Veteran’s duties under his MOS, and the examiner failed to provide an adequate explanation for the opinion given. Thus, remand is required.   4. Entitlement to service connection for a right ankle disorder Remand is required for an adequate VA examination and opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr, 21 Vet. App. at 311. Where the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton, 21 Vet. App. at 39-40. The requirement of a current disability includes pain that causes functional impairment of earning capacity. Saunders, 886 F.3d 1356. The Veteran received a VA examination in December 2016. The examiner diagnosed right ankle impingement. The examiner opined that right ankle disability was less likely than not incurred or caused by service. The examiner stated the Veteran has not established a chronic ankle condition and he has not sought treatment for his ankle since separation from active duty in 2004. The Board finds, however, that the examiner failed to address: 1) the Veteran’s lay statements of pain since service, 2) STRs that showed right ankle treatment, 3) the Veteran’s MOS of bridge crewmember as to the specific duties of jumping out of a truck with a three foot drop, and 4) buddy statements. Accordingly, remand is required to adequately address the evidence and the Veteran’s lay statements. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. 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. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his right ankle disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed right ankle disorder or right ankle pain that caused functional impairment of earning capacity had onset in, or is otherwise related to, active military service. The examiner must address the following: 1) the Veteran’s statements of pain during and since service; 2) the STRs noting right ankle treatment and popping, 3) the Veteran’s duties as a bridge crewman, and 4) the buddy statements. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his cervical spine disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed cervical spine disorder or cervical spine pain that caused functional impairment of earning capacity had onset in, or is otherwise related to, active military service. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed cervical spine disorder or cervical spine pain that caused functional impairment of earning capacity was caused or aggravated by the thoracolumbar spine disorder. The examiner must address the Veteran’s lay statements regarding cervical spine pain. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2019). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.