Citation Nr: 21004314 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-27 447 DATE: January 26, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for excessive scar tissue on the back, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for a right arm disorder, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for a left arm disorder, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for a right foot disorder, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for a left foot disorder, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for erectile dysfunction, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety, to include as due to exposure to ionizing radiation, is remanded. Entitlement to special monthly compensation (SMC) based upon the need of aid and attendance/housebound beginning August 1, 2017, is remanded. REASONS FOR REMAND The Veteran had active military service from June 1953 to May 1955. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in March 2018 and May 2020, at which times the issues currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. In an October 2020 rating decision, the Veteran was granted entitlement to service connection for right and left leg disorders, a vision disorder, and residuals of a stroke disability, representing full grants of the matters previously on appeal. Accordingly, those matters are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). In the October 2020 rating decision, the Veteran was granted entitlement to SMC from January 13, 2017 to August 1, 2017. That was not a complete grant of the benefits sought on appeal. However, the Board has limited its consideration accordingly. Service Connection Lumbar Spine In August 2020, the examiner opined that the Veteran’s spinal stenosis and failed back syndrome were not related to service. In reaching this conclusion, the examiner commented that the Veteran’s service treatment records (STRs) were silent for complaints or treatment of a back condition, and that the Veteran did not seek treatment for a back condition until several years following his separation from service. The Board finds that the August 2020 VA opinion is inadequate for adjudication purposes. In this regard, the examiner relied on the fact that the Veteran’s STRs were silent for treatment of a back condition; however, the Board notes that the Veteran’s STRs are unavailable. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Moreover, the examiner relied otherwise solely on the absence of post-service treatment for several years as the rationale for the negative nexus opinion. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, the Board finds that a new VA medical opinion is warranted to address the nature and etiology of the Veteran’s lumbar spine disorder. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). Excessive Scar Tissue on Back and Acquired Psychiatric Disorder The issues of entitlement to service connection for excessive scar tissue on back and an acquired psychiatric disorder are inextricably intertwined with the claim of entitlement to service connection for a lumbar spine disorder remanded herein, as evidence shows that the Veteran’s excessive scar tissue and acquired psychiatric disorder may be related to his lumbar spine disorder. In this regard, the record reflects that the Veteran’s back scars are related, in part, to back surgeries. With regard to an acquired psychiatric disorder, the July 2014 VA examiner opined that the Veteran’s adjustment disorder with anxiety was related to a 2007 back surgery. Additionally, the Board notes that in October 2020 the Veteran was afforded a VA examination. The examiner did not diagnose any acquired psychiatric disorders and no etiology opinion was provided. While the October 2020 VA examiner did not diagnose an acquired psychiatric disorder, a July 2016 VA examiner noted that the Veteran had a diagnosis of adjustment disorder with anxiety. Hence, a determination on the claims for entitlement to service connection for excessive scar tissue on back, and an acquired psychiatric disorder should be deferred pending final disposition of the claim for entitlement to service connection for a lumbar spine disorder. Diabetes In a November 2020 VA opinion, the examiner opined that the Veteran’s diabetes mellitus was not related to active service, to include in-service exposure to ionizing radiation. The Board finds that the November 2020 VA opinion is inadequate for adjudication purposes. In this regard, the examiner commented that only a small number of peer-reviewed journals have examined the relationship between radiation and diabetes; however, the findings or results of these studies were not provided by the examiner and the examiner did not discuss the relevance of these studies. Therefore, the Board finds that a new VA medical opinion is warranted to address the nature and etiology of the Veteran’s diabetes mellitus. Stegall v. West, 11 Vet. App. 268. Right and Left Arm, and Right and Left Feet The issue of entitlement to service connection for right and left arm, and right and left foot disorders are inextricably intertwined with the lumbar spine and diabetes claims remanded herein as evidence shows each of the above-mentioned disorders may be secondary to a back disorder and/or diabetes. In this regard, the record reflects that the Veteran experienced bilateral extremity radiculopathy, as well as bilateral foot peripheral polyneuropathy. Hence, a determination on these claims should be deferred pending final disposition of the claims for entitlement to service connection for a lumbar spine disorder, and diabetes. Erectile Dysfunction The issue of entitlement to service connection for erectile dysfunction is inextricably intertwined with the claim of entitlement to service connection for diabetes remanded herein, as the Veteran has claimed that his diagnosed erectile dysfunction may be secondary to diabetes. Hence, a determination on this claim should be deferred pending final disposition of the claim for entitlement to service connection for diabetes. Entitlement to SMC The Board also notes that the issues of entitlement to SMC is inextricably intertwined with the claims remanded herein, as the Veteran’s SMC claim is predicated on those claims. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for entitlement to SMC should be deferred pending final disposition of the each of the Veteran’s claims on appeal. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records beginning December 2020. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s claimed lumbar spine disorder. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present lumbar spine disorder, to include spinal stenosis and failed back syndrome, had its onset during his active service, or is otherwise etiologically related to such service, to include as a result of ionizing radiation exposure. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s diabetes mellitus, type II. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s diabetes had its onset during his active service, or is otherwise etiologically related to such service, to include as a result of ionizing radiation exposure, and to also include whether it manifested to a compensable degree within one year of the Veteran’s discharge from service. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. (Continued on the next page)   A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 4. Following the completion of the above, the Agency of Original Jurisdiction should consider whether additional development is warranted as a result of the above (e.g., development for an acquired psychiatric disorder, right and left arm disorders, right and left foot disorders, erectile dysfunction, excessive scar tissue on back and entitlement to SMC). KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher O'Donnell, 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.