Citation Nr: 21002633 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 13-28 959A DATE: January 14, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent for intervertebral disc syndrome (IVDS) with lumbosacral strain (hereinafter “lower back disability”) is remanded. Entitlement to an initial rating in excess of 20 percent for left leg radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for right leg radiculopathy is remanded. Entitlement to service connection for a heart disorder, to include Wolff-Parkinson-White syndrome, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 2000 to June 2002. In April 2017, the Veteran testified before the undersigned at a Board of Veterans’ Appeals (Board) videoconference hearing. A transcript of the hearing is of record. In February 2018, the Board remanded the matters on appeal for further evidentiary development. The Board notes that the Veteran submitted a VA Form 9 in April 2020 (in response to a February 2020 Statement of the Case) in which he requested another Board hearing regarding the initial evaluations for his radiculopathy. Under 38 C.F.R. § 20.700(a), however, an appellant is “limited to one Board hearing following the filing of a Notice of Disagreement with a decision of the agency of original jurisdiction.” Although the regulation further states that “[r]equests for additional Board hearings may be granted for good cause shown,” neither the Veteran nor his attorney have provided good cause as to why a second hearing should be provided. As such, providing the Veteran with a second Board hearing is not required at this juncture. See 38 C.F.R. § 20.700(a) (2019). In February 2020, the Veteran’s attorney submitted a request to be removed as the representative of record, citing the Veteran’s lack of cooperation. The attorney has since submitted numerous filings on the Veteran’s behalf without any subsequent reference to the request for removal; it does not appear either the Veteran or the attorney now wish to severe the relationship. 1. Entitlement to increased initial ratings for a lower back disability and associated bilateral lower extremity radiculopathy The Veteran was last afforded a VA examination for his lower back disability in January 2019. Since that time, the evidence suggests his symptoms may have worsened. Notably, in June 2020, a MRI revealed a “new superimposed central disc extrusion”; accompanying clinical notes indicated that the Veteran’s range of motion was “extremely limited.” Then, a VA pain consult note from July 2020 indicated that the Veteran reported “increasing/worsening low back pain” with symptoms becoming “progressively worse.” Accordingly, the Board finds that an updated examination is needed. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a claimant is entitled to a new VA examination where there is evidence that the condition has worsened since that last examination); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the claimant with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). As to the Veteran’s bilateral leg radiculopathy, the Board notes that the lower back examination requested above entails an examination of associated neurological impairment, including radiculopathy. Consequently, the claims for increased initial ratings for radiculopathy are inextricably intertwined with the claim for an increased initial rating for the Veteran’s lower back disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board is aware that the Director of Compensation Service issued a memorandum in October 2020 denying entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Because the requested lower back examination will likely bear on that issue, a final decision at this time is inappropriate. See id. 2. Entitlement to service connection for a heart disorder, to include Wolff-Parkinson-White syndrome During the Veteran’s April 2017 Board hearing, he testified that his heart disorder began in service, with symptoms of shortness of breath and palpitations beginning in Basic Training. His service treatment records reflect that he presented with symptoms of chest pain, dizziness, and shortness of breath in June 2000. On a Report of Medical History completed prior to discharge, the Veteran endorsed shortness of breath. Post-service VA medical records indicate that, in 2009, the Veteran had symptoms of exertional palpitations and lightheadedness. In February 2009, he reported experiencing cardiac symptoms since service. He was diagnosed with Wolff-Parkinson-White syndrome and underwent ablation. In May 2009, an EKG was essentially normal. The Veteran was afforded a VA heart examination in January 2019. The report confirms a diagnosis of Wolff-Parkinson-White syndrome; the onset date was noted to be 2000. However, in a subsequent opinion, the examiner stated that the diagnosis was actually made in 2011, and thus “chronicity and continuity cannot be demonstrated, and a nexus cannot be established between [the] claimed heart condition and in-service event(s).” By way of rationale, the examiner noted that the in-service EKG was within normal limits, and the Veteran was not given any medication nor see a cardiologist. The Board finds that the January 2019 VA examiner’s negative nexus opinion is inadequate. First, the examiner incorrectly noted that the Veteran’s diagnosis of Wolff-Parkinson-White syndrome was made in 2011; in fact, as noted above, the diagnosis was made in 2009. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that medical opinions based on incomplete or inaccurate factual premises are not probative). Second, the Board finds that the VA examiner’s opinion fails to meaningfully account for the Veteran’s reports of “on-and-off” symptoms such as chest pain and shortness of breath, which he has reported have been continuous since his discharge from service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a layperson is competent to report on matters of which he or she has personal knowledge). Instead, it appears that the examiner based his negative opinion solely on the date of diagnosis (which, again, was incorrect). An updated examination and opinion are needed prior to final adjudication of this matter. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA provides a claimant with a medical examination or opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records pertaining to the Veteran, to include records dating from November 2020 to the present. 2. Contact the Veteran and request that he submit any pertinent records in his possession from private treatment providers, to include records from Surfside Non-Surgical Orthopedics (as identified in a “clinical summary” submitted in November 2020). If necessary, the Veteran should be asked to provide the necessary authorization so that VA may make reasonable attempts to obtain the records. All such attempts must be documented in the record. 3. Schedule the Veteran for an examination of the current severity of his lower back disability, to include associated bilateral leg radiculopathy. To the extent possible, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s lower back disability and associated radiculopathy and discuss the effects of this disability on any occupational functioning and activities of daily living. The examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current heart disorders, to include Wolff-Parkinson-White syndrome. The clinician must opine whether it is at least as likely as not that any such disorder was incurred or aggravated in service. The clinician must specifically discuss the Veteran’s in-service treatment in June 2000 for chest pain, dizziness, and shortness of breath, as well as his lay contentions (as articulated at his Board hearing and elsewhere) that his symptoms have persisted since Basic Training. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.