Citation Nr: 20042375 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 17-28 813 DATE: June 23, 2020 ORDER Entitlement to service connection for the Veteran’s left leg disability is granted. REMANDED Entitlement to service connection for the Veteran’s neck disability is remanded. Entitlement to service connection for the Veteran’s back disability is remanded. FINDING OF FACT The Veteran’s left leg disability is aggravated by his service connected multiple myeloma. CONCLUSION OF LAW The criteria for service connection for a left leg disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from January 1969 to January 1971. In February 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to obtain outstanding VA records and receive VA examinations for his left leg, back, and neck disabilities. Additional VA records were added to the record, and the Veteran received VA examinations for his disabilities in December 2019. The Board finds that the VA examination for his left leg disability was adequate, but as discussed in the remand portion below, new VA opinions are necessary concerning the Veteran’s neck and back disability. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2019); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310(a) (2019). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(a) (2019); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2019). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserted that his left leg disability was due to his service-connected multiple myeloma. He underwent a VA examination in December 2019. The examiner concluded that his left leg disability was not due to his myeloma condition. However, he concluded that the Veteran’s left leg disability was aggravated by his service-connected multiple myeloma and the treatment he underwent. Consequently, as the preponderance of the evidence is for the Veteran’s claim, the Board finds that secondary service connection is warranted. See Alemany v. Brown, 9 Vet. App. 518 (1996). REASONS FOR REMAND As noted above, the Veteran received VA examinations for his back and neck disabilities in December 2019. The examiner stated that the record showed that the Veteran’s neck pain began in 2011 and his back pain in 2010, many years after service. However, the record contains multiple lay statements describing the Veteran’s continual neck and back pain since service. In forming a negative nexus opinion, the examiner failed to adequately consider the lay statements of record. Thus, the Board opined that the December 2019 VA opinions were inadequate and thus not substantially compliant with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, a new nexus opinion is necessary that considers the lay statements. The matters are REMANDED for the following action: 1. Return the Veteran’s claims file to clinician who performed the December 2019 back VA examination so that a supplemental nexus opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the clinician for review. A telehealth or physical examination is only required if deemed necessary by the clinician. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the lay statements of record describing the Veteran’s back disability. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the clinician should assume that the lay statements are true. If there is a medical reason to doubt their veracity, the clinician should explain why the lay evidence is inconsistent with the principles of medical science and/or the evidence in this case. The clinician should opine as to the following: a.) State whether the Veteran’s disability is either a congenital defect or congenital disease. For the purposes of this opinion, please be advised that a defect is a structural or inherent abnormality or condition that is more or less stationary in nature. In contrast, a disease is any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown; that is, a disease capable of progression. b.) If the answer to (a) is that the Veteran’s back disability is a congenital defect, then is there any disability superimposed on any identified congenital defect? If there is a superimposed disability, please opine as to whether it is at least as likely as not (50 percent or greater probability) that the disability had its onset during or is related to his active service. c.) If the answer to (a) is that the Veteran’s back disability is a congenital disease, then please opine as to whether it is undebatable that his back disability did not increase in severity during his service beyond the natural progression of the disease. d.) If the Veteran’s lower back disabilities are not congenital disabilities, is there clear and unmistakable evidence that lower back disabilities preexisted the Veteran’s entry into active military service? If there is undebatable evidence that any of the Veteran’s back disabilities preexisted service, is there also undebatable evidence that the preexisting back disability did NOT increase in severity beyond the natural progression of the condition? e.) Finally, for any earlier disability/disease identified, is it at least as likely as not that, the current disability is a progression of the same disease process? The clinician must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the clinician must state this and provide a rationale for such conclusion. 2. Return the Veteran’s claims file to clinician who performed the December 2019 neck VA examination so that a supplemental nexus opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the clinician for review. A telehealth or physical examination is only required if deemed necessary by the clinician. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the lay statements of record describing the Veteran’s neck disability. For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the clinician should assume that the lay statements are true. If there is a medical reason to doubt their veracity, the clinician should explain why the lay evidence is inconsistent with the principles of medical science and/or the evidence in this case. The clinician must opine as to the following: a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s neck disability began during active service, is related to an incident of service, or began within one year after discharge from active service. b.) Whether it is at least as likely as not that the Veteran’s neck disability was proximately due to or the result of his service connected multiple myeloma. c.) Whether it is at least as likely as not that the Veteran’s neck disability was aggravated beyond its natural progression by his service-connected multiple myeloma. The clinician must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the clinician must state this and provide a rationale for such conclusion. 3. Ensure that the directives specified in this remand has/have not been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.