Citation Nr: 20006396 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 17-29 565 DATE: January 28, 2020 REMANDED Entitlement to service connection for right lower extremity sciatica is remanded. Entitlement to service connection for left lower extremity sciatica is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2011 to December 2015. Unfortunately, due to reasons that follow, a remand is required. Although the Board sincerely regrets this additional delay, it is necessary to ensure the Veteran is afforded adequate due process and every possible consideration. The Veteran contends that his right and left lower extremity numbness and tingling are secondary to his service-connected back disability. During a March 2016 VA examination for back conditions, the Veteran reported back pain that began during active service after multiple falls. He noted that his pain had worsened. The VA examiner noted that the Veteran reported subjective complaints of paresthesia and sciatica bilaterally. In August 2016, the Veteran underwent a contract VA examination. He was not diagnosed with a peripheral nerve condition or peripheral neuropathy. The examiner noted that the Veteran complained of back pain since he was deployed to Afghanistan in 2007. He found that the Veteran had symptoms attributed to peripheral nerve conditions; however, he did not note what the symptoms were. The examiner opined that the Veteran’s bilateral lower extremity sciatica was less likely than not due to and/or the result of his service-connected lumbosacral strain as he had no signs of sciatica or other nerve involvement. During the November 2019 Board hearing, the Veteran reported that his bilateral lower extremities tingled and were numb. The Veteran asserted that his bilateral leg numbness and tingling was secondary to his service-connected back disability. He noted that his examination in August 2016 by the contract examiner was full of inconsistencies. The August 2016 examiner did not diagnose the Veteran with a peripheral nerve condition; however, he found that the Veteran had symptoms attributed to peripheral nerve conditions. The Veteran stated that the physician did not examine his back. Further, the Veteran stated that the examiner was arguing with him about the Veteran’s medical records and misread dates. This is evidenced as the August 2016 examiner recorded that the Veteran served in Afghanistan in 2007 when the Veteran was not in service until June 2011. Lastly, the Veteran has asserted that the contract examiner did not record that the Veteran complained of bilateral lower extremity numbness and tingling. In November 2019, the Veteran submitted an internet review of the August 2016 contract examiner by other Veterans that was consistent with the Veteran’s observations. It was alleged that the examiner was confrontational with other Veterans and misread dates and medical records. A review of the evidence reflects that even though the August 2016 contract examiner found that the Veteran did not currently have a diagnosis of a peripheral nerve condition or peripheral neuropathy, other competent evidence showed that the Veteran had paresthesia and sciatica bilaterally. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018) (holding that "pain in the absence of a presently-diagnosed condition can cause functional impairment."); see also March 2016 VA examination. Although the contract examiner did not find a diagnosis, he indicated that the Veteran had symptoms attributed to peripheral nerve conditions. Also, the August 2016 examiner failed to address the Veteran’s lay contentions noting bilateral leg numbness and tingling. The Board notes that lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, in light of the foregoing, the Board finds that, after an examination of the Veteran, an addendum medical opinion should be obtained from an examiner who has not previously examined the Veteran to include the August 2016 contract examiner. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate examiner other than the August 2016 examiner to determine the etiology of the Veteran’s claimed bilateral lower extremity sciatica. The record must be made available to the examiner and the examiner should indicate in his/her report whether the record was reviewed. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a.) Identify all current diagnoses of the bilateral lower extremities. If the examiner determines the Veteran’s reports of bilateral leg numbness and tingling are not attributable to any specific diagnosis, the examiner must assess whether these symptoms result in any functional impairment. If the reported symptoms result in functional impairment, the examiner must still provide a nexus opinion despite the lack of a specific diagnosis in accordance with the holding in Saunders, supra. (b.) whether it is at least as likely as not (50 percent or greater likelihood) that a left lower extremity condition and/or a right lower extremity condition is proximately due to the Veteran’s service-connected back disability. (c.) whether it is at least as likely as not (50 percent or greater likelihood) that a left lower extremity condition and/or a right lower extremity condition is permanently aggravated by the Veteran’s service-connected back disability. The examiner should address the Veteran’s contention that he has bilateral leg numbness and tingling, as well as provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide the requested opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.