Citation Nr: 21000464 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-54 406 DATE: January 5, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a sinus condition is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2004 to October 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. These matters were previously remanded by the Board in November 2019. At that time, the Board also remanded the issues of entitlement to service connection for erectile dysfunction and a bladder condition. During the pendency of the remand, an August 2020 rating decision granted service connection for overactive bladder and erectile dysfunction. As that decision constitutes a full grant of the claims for service connection, they are no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997), (because appellant’s first appeal concerned rejection of logically up-stream element of service connection, appeal could not concern logically down-stream elements). 1. Entitlement to service connection for a lumbar spine disability is remanded. 2. Entitlement to service connection for a cervical spine disability is remanded. Per the November 2019 Board remand, the Veteran underwent VA lumbar spine and cervical spine examinations in January 2020 and the examiner diagnosed lumbosacral and cervical strains. The examiner provided a negative nexus opinion and reasoned that there were no records to support that the Veteran’s lower back disability is related to his active service. Therefore, the Veteran’s lumbosacral and cervical strains are less likely than not that the disabilities originated during or are otherwise etiologically related to his service. In providing an opinion, the examiner was instructed to consider the Veteran’s statements to the effect that the onset of his lower back pain and neck pain occurred during service secondary to carrying heavy equipment while jumping on and off of trucks and that his pain has persisted to the present day. In response, the examiner stated that there were no records found to support that the Veteran’s lower back disability is related to his active service. Therefore, the examiner stated, there is no evidence to support the Veteran’s statement. The Board finds the rationale provided to be insufficient. Accordingly, an addendum opinion should be obtained upon remand. 3. Entitlement to service connection for a sinus condition is remanded. The Veteran underwent VA sinus conditions examination in January 2020 and the examiner diagnosed chronic sinusitis and non-allergic rhinitis. The examiner provided a negative nexus opinion, reasoning that there are no records to support the Veteran’s statements that he lived next to a burn pit and every time they would burn material in the pit, smoke would get inside his living area and this was when he first began having problems with breathing and congestion. However, the examiner also stated that exposure to smoke may cause sinus and upper respiratory issues. Given the contradictory rationale, the Board finds an addendum opinion should be obtained upon remand. The Board further notes that in March 2020, the Veteran submitted a buddy statement from R.S.; however, the copy of the statement in the claims file is too dark to read. Upon remand, the Board finds that a more legible copy should be obtained. Updated treatment records should also be obtained. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. With any necessary assistance from the Veteran, attempt to rescan the March 2020 buddy statement from R.S. If efforts to rescan a legible copy are unsuccessful, contact the Veteran and afford him the opportunity to provide a legible copy of the buddy statement. 3. After records development is completed, send the claims file to the January 2020 VA lumbar spine and cervical spine examiner, if available, to obtain an addendum opinion as to whether the Veteran’s lumbosacral and cervical strains are possibly related to service. If a new examination is required in order to respond to the request, such should be scheduled. Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current disability of the lumbar and cervical spine (to include the lumbosacral strain and cervical strain) arose during service or are otherwise related to service, to include as a result of carrying heavy equipment while jumping on and off of trucks during service. If not, please provide a more likely etiology. In providing the opinion, the examiner should explain why or why not, to include addressing the Veteran’s lay statements that his neck and back pain have persisted since service and the March 2020 buddy statement from L.S. that the Veteran complained of severe neck and back pain during service which hindered ability to complete tasks and follow through with a mission. 4. Send the claims file to the January 2020 VA sinus conditions examiner, if available, to obtain an addendum opinion as to whether the Veteran’s sinus conditions are possibly related to service. If a new examination is required in order to respond to the request, such should be scheduled. Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current sinus condition (to include sinusitis and rhinitis) arose during service or are otherwise related to service, to include as a result of living next to a burn pit and having smoke come inside the living area when material were being burned. If not, please provide a more likely etiology. (Continued on the next page)   In providing the opinion, the examiner should explain why or why not, to include addressing the Veteran’s lay statements that he first began having problems with breathing and congestion during the time he lived next to a burn pit and the March 2020 buddy statements from R.S. and L.S., regarding living next to a burn pit and how they inhaled large amounts of dangerous toxins during that time. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Medina, 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.