Citation Nr: 20056743 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 14-38 243A DATE: August 27, 2020 REMANDED Entitlement to service connection for lumbar radiculopathy, claimed as right leg pain is remanded. Entitlement to service connection for degenerative disc disease of the lumbar spine, claimed as back pain is remanded. REASONS FOR REMAND The Veteran served in the United States Army from March 1977 to March 1980, April 1994 to August 1994, January 1995 to June 1995, and from October 1996 to July 1997. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) March 2012 rating decision of the Agency of Original Jurisdiction (AOJ). 1. Entitlement to service connection for lumbar radiculopathy, claimed as right leg pain is remanded. 2. Entitlement to service connection for degenerative disc disease of the lumbar spine, claimed as back pain is remanded. In a May 2018 decision, the Board, in pertinent part, denied the Veteran’s claims. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a April 2020 Court order, the Court vacated the Board’s decision to both claims, and pursuant to a May 2018 Joint Motion for Partial Remand (JMPR) remanded the issues back to the Board. The Court found that the Board erred by not making a determination as to whether the Veteran is entitled to a VA examination to determine the severity and etiology of his back and right-leg conditions. The Veteran contends that his back disability and his right-leg radiculopathy are due to his military service. The Board notes that the Veteran has not been afforded a VA examination to determine the etiology of either condition. Furthermore, in a September 2018 Motion for Reconsideration and a July 2020 letter to the Board, the Veteran, through his representative, has asked to be provided with a VA examination, pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, while the Board regrets the additional delay, a remand is necessary to assist the Veteran in developing his claim. The matters are REMANDED for the following action: 1. The AOJ shall obtain any updated VA treatment records relating to the Veteran’s back and right leg. All documentation sent and received by the AOJ shall be associated with the claims file. 2. The AOJ shall schedule the Veteran for a VA examination, to be performed by an appropriate clinician, to determine the nature and etiology of the Veteran’s back disability. The examiner shall be provided with a copy of the Veteran’s claims file, including a copy of these remand directives. The examiner shall provide the following opinions: (a.) Whether it is as least as likely as not (50 percent or greater) that the Veteran’s back condition is due to, caused by, or related to his military service. The examiner shall address the Veteran’s assertion that in 1977 he “fell off a 2 ½ ton truck … went two[sic] sick call and was put on light duty for 2 weeks,” and also address the statement in the Veteran’s September 2018 Motion for Reconsideration that “it is more than possible that the physically demanding nature … throughout his years in service could have caused the beginnings of his current” back disability. The examiner shall provide a complete, written rationale for their opinions. If the examiner cannot provide the requested opinions without resorting to mere speculation, the examiner must explain why that is the case. 3. The AOJ shall schedule the Veteran for a VA examination, to be performed by an appropriate clinician, to determine the nature and etiology of the Veteran’s right-leg disability. The examiner shall be provided with a copy of the Veteran’s claims file, including a copy of these remand directives. The examiner shall provide the following opinions: (a.) Whether it is as least as likely as not (50 percent chance or greater) that the Veteran’s right-leg disability is caused by, due to, or related to his military service; and (b.) Whether it is as least as likely as not (50 percent chance or greater) that the Veteran’s right-leg disability is proximately due to, or aggravated beyond the natural progression of the disease, by his back disability. The examiner shall address the Veteran’s contentions that he fell in 1977 (see above), and his August 2010 Authorization and Consent to Release Information to the Department of Veterans Affairs Form 21-4142 wherein the Veteran stated his right leg radiculopathy is due to his back condition. The examiner shall provide a complete, written rationale for their opinions. If the examiner cannot provide the requested opinions without resorting to mere speculation, the examiner must explain why that is the case. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.