Citation Nr: 20021398 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-41 596 DATE: March 25, 2020 REMANDED Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for radiculopathy of the left lower extremity, to include as secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from December 1986 to April 1987, from January 1988 to January 1992, from January 1993 to November 1996, from May 2004 to November 2005, from July 2006 to June 2008. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were before the Board in March 2019, at which time the Board denied entitlement to a compensable rating for erectile dysfunction and entitlement to service connection for bilateral lower extremity radiculopathy. Thereafter, the Veteran appealed this decision to the Court of Appeals for Veterans Claims (the Court). In September 2019, a Joint Motion for Partial Remand (JMPR) was granted by the Court, vacating the March 2019 Board decision regarding his bilateral lower extremity radiculopathy remanding these issues back to the Board for additional development. The Board notes that the Veteran has appealed a claim for entitlement to service connection for sleep apnea which will part of a separate Board decision once necessary development is completed. 1. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for radiculopathy of the left lower extremity, to include as secondary to service-connected disabilities. The Veteran contends that his bilateral radiculopathy is the result of military service. In addition, he contends that his bilateral radiculopathy was caused or aggravated by his service-connected chronic myofascial lumbar syndrome. In light of the points raised by the JMPR and a review of the claims file the Board finds a remand is warranted for additional development. A review of the service treatment records (STRs) reveals that the Veteran complained of tingling and numbness on his separation report of medical history. However, his separation examination did not reveal any neurological issues. The Veteran underwent several VA examinations regarding these claims. An October 2014 VA examination report noted his complaints of pain radiating down his right leg. A diagnosis of lumbar degenerative disease with right sided radiculopathy was found by the examiner. The examiner then gave a negative opinion that the radiculopathy was the result of his military service. The examiner noted that no signs of radicular or degenerative lumbar disease were found while the Veteran was in active military service or within a year of discharge. The examiner also noted that the lumbar degenerative disease was first documented in 2013 (over a year after discharge) with the radiculopathy developing four years after discharge. In addition, the examiner gave a negative opinion that the radiculopathy was caused or aggravated by his service-connected chronic myofascial lumbar syndrome. The examiner found no medical authority or peer reviewed medical research that supported the contention that his radiculopathy was caused or aggravated by the myofascial lumbar syndrome. A July 2015 VA examination report noted a diagnosis of bilateral lower extremity radiculopathy. The examiner then gave a negative opinion that the radiculopathy was the result of the Veteran’s chronic myofascial lumbar syndrome. The examiner noted that the radiculopathy was the result of non-service connected lumbar degenerative disc disease. No other rationale was provided. A July 2016 VA examination report noted the Veteran’s radiculopathy; however, the examiner noted that it was related to his non-service connected lumbar degenerative disease. No rationale was provided. A November 2017 VA examination report noted the Veteran’s radiculopathy; however, the examiner found that it would be secondary to compression of nerve roots from lumbar disc herniation and not secondary to his myofascial syndrome. No rationale was provided for this opinion. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the VA examiners did not address or take into account the Veteran’s in-service report of numbness and tingling when they rendered their opinions. Opinions based on an inaccurate factual background have no probative value. Therefore, the Board finds that the VA examinations are inadequate due to the examiners’ failure to fully address the Veteran’s in-service numbness complaints. As such, the Board remands this matter for the issuance of an addendum VA medical opinion. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Obtain a VA medical opinion regarding the Veteran’s bilateral lower extremity radiculopathy from a medical professional with appropriate expertise. The reviewer should review the Veteran’s claims file and make a notation the claims file has been reviewed. If the reviewer determines an opinion cannot be provided without an examination, such should be scheduled. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral lower extremity radiculopathy had its onset in service or is otherwise related to service? The examiner is to address the Veteran’s in-service complaints of tingling and numbness. (b.) If the answer to (a.) is negative, whether it is at least as likely as not that the bilateral lower extremity radiculopathy was caused or aggravated by the Veteran’s service-connected disabilities, including but not limited to: his chronic myofascial lumbar syndrome? The examiner is to render opinions on both causation and aggravation. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. “Aggravation” means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. K. R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.