Citation Nr: 21004714 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-12 197 DATE: January 28, 2021 ORDER Entitlement to service connection for lumbar stenosis (lumbar spine disability) is granted. Entitlement to service connection for right lower extremity radiculopathy, secondary to service-connected lumbar spine disability on a causation basis, is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to service-connected diabetes, lumbar spine disability, or Agent Orange exposure, is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s lumbar spine disability had its onset in service. 2. The evidence is at least evenly balanced as to whether the Veteran’s right lower extremity radiculopathy is caused by his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for peripheral neuropathy of the lower right extremity, secondary to service-connected lumbar spine disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from May 1969 through June 1971. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a December 2014 Regional Office (RO) rating decision that denied service connection for lumbar spine disability and peripheral neuropathy of the bilateral lower extremities. The issues were remanded by the Board in March 2020 and after a September 2020 supplemental statement of the case (SSOC), the issues have returned to the Board for adjudication. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in January 2020. The transcript of the hearing is of record. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lumbar Spine The Veteran contends his lumbar spine disability began in service and has continued since discharge. In February 2014, the Veteran was diagnosed with low back pain by a Kaiser Permanente medical professional in Colorado. Subsequently, the Veteran was diagnosed with multilevel degenerative changes of the lumbar spine in a May 2016 physical therapy note, an April 2020 VA examination noted a 1992 diagnosis of degenerative arthritis of the spine, an April 2020 VA examiner diagnosed him with a lumbosacral strain and a July 2020 VA examiner diagnosed him with lumbar stenosis. Therefore, current lumbar spine disability has been established. In his January 2020 Board hearing, the Veteran testified that while in service he did a lot of moving and heavy lifting that resulted in significant stress on his back. Specifically, he described the hard and physical work of performing as a boatswain in service where he grabbed the nets off the side of the ship and pulled/sprained his back, leading to pain in his back that has continued ever since. Moreover, during his April 2020 VA examination, the Veteran reported back pain in service. The Veteran has therefore provided competent evidence of in-service back strain and pain, satisfying the in-service element. Therefore, the dispositive issue is whether there is a nexus between the Veteran’s in-service back pain and his current lumbar spine disability. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran’s current lumbar spine disability is related to his in-service back pain. Following the March 2020 Board remand, the Veteran was afforded VA examinations in April 2020 and July 2020. Those two VA examiners provided negative medical opinions, indicating that the Veteran’s service records were silent to back complaints, that his spine was normal at discharge and that the next documentation of back problems wasn’t for many years later. To the contrary, the Veteran testified at his January 2020 Board hearing that his VA treatments began only a few years after discharge, and his wife testified that he has “always complained about his back pain.” Additionally, the Veteran’s service treatment records are not completely of record as there are missing records from the Veteran’s service upon the USS Kearsarge. Lastly, and crucially, the Veteran testified that after he hurt is back in service, he went to see a military doctor but that the doctor wouldn’t treat him because he was about to be discharged. The VA medical opinions are of little, if any, probative value, because the examiners failed to consider the competent and credible evidence of the Veteran’s report of the onset of his back pain in service and the continuation of those symptoms in the years since service. Dalton v. Peake, 21 Vet. App. 23 (2007) (an opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history). In addition, given the lack of an adequate medical opinion, there is no evidence in the record contrary to the Veteran’s competent and credible lay statements that he injured his back in service and continued to experience back pain until his ultimate diagnosis. While the Board could remand the case again for yet another opinion, such a request could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). Here, the evidence is sufficient to decide the claim, as the preponderance of the evidence reflects that the Veteran’s lumbar spine disability began in service. Thus, entitlement to service connection for lumbar spine disability is warranted. Right Lower Extremity Radiculopathy The Veteran had originally contended that his bilateral peripheral neuropathy was due to his now-service-connected diabetes. In that regard, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Following the March 2020 Board remand, the Veteran was afforded VA examinations in April 2020 and July 2020. Both VA examiners, who as noted below were a nurse practitioner and a physician’s assistant, respectively declined to diagnose the Veteran with peripheral neuropathy. However, the April 2020 VA examiner noted the Veteran has lumbar stenosis with radicular symptoms into his right lower extremity and the July 2020 VA examiner noted that the Veteran has lumbar stenosis with right lower extremity radiculopathy and right foot drop. While not a formal diagnosis, it is the clear medical judgment of the two VA examiners that the Veteran’s current right leg pain is due to radiculopathy. This is sufficient to establish current disability. While the Veteran claimed peripheral neuropathy of the bilateral lower extremities, the July 2020 VA examiner clearly indicates the Veteran has right lower extremity radiculopathy. A claim is not limited to the way it is characterized by a veteran or to a particular diagnosis but should be construed based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-8 (2009). Thus, the claim for service connection has been recharacterized to include right lower extremity radiculopathy. The Board also notes that the April and July 2020 VA examiners specifically and repeatedly combined the Veteran’s lumbar stenosis with his right lower extremity radiculopathy (and right foot drop). For the purposes of secondary service connection, the Veteran’s lumbar spine disability was service-connected above, therefore satisfying the service-connected disability requirement for secondary service connection. The remaining issue is whether the Veteran’s right lower extremity radiculopathy is related to his service-connected lumbar spine disability. To that end, the April 2020 and July 2020 VA examiners provided negative medical opinions regarding the claimed peripheral neuropathy, despite declining to diagnose peripheral neuropathy and indicating the Veteran needed to be seen by a neurologist. However, while the July 2020 VA examiner concluded that the Veteran’s current radiculopathy was not “caused by” his service-connected diabetes, it is more likely caused by the Veteran’s lumbar stenosis and the VA examiner punctuated that clinically, the Veteran’s radiculopathy was not associated with diabetes and stems from degeneration of the lower lumbar spine. As this opinion indicates that the Veteran’s right lower extremity radiculopathy is caused by his service-connected lumbar spine disability, it is probative evidence in support of the claim. While the examiner did not provide a thorough rationale to accompany her opinion, an examiner need not explicitly lay out their journey from the facts to a conclusion in order for an opinion to be considered probative. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate). Reading the July 2020 VA examiner’s opinion as a whole and in context of the evidence of record and her examination of the Veteran, the conclusion that the Veteran’s right lower extremity radiculopathy is caused by his service-connected lumbar spine disability is entitled to substantial probative weight. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The above evidence reflects that there is a competent, probative medical opinion that weighs in favor of service connection for the Veteran’s right lower extremity radiculopathy secondary to his service-connected lumbar spine disability, and no evidence against. The preponderance of the evidence is therefore in support of the claim for entitlement to service connection for right lower extremity radiculopathy secondary to service-connected lumbar spine disability, on a causation basis, and the claim must be granted. REASONS FOR REMAND Unfortunately, the Board finds that another remand for further development is necessary before the remaining claim can be decided. In March 2020, the Board remanded the Veteran’s claim for service connection for peripheral neuropathy of the bilateral lower extremities for an opinion from a qualified VA physician to determine its nature and etiology. Following the Board remand, the Veteran was afforded VA examinations in April 2020 from a registered nurse and in July 2020 from a physician’s assistant. For the following reasons, the VA opinions obtained on remand are not adequate. Although the Board regrets the additional delay, a remand for a new opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). The Board directed the agency of original jurisdiction (AOJ) to obtain an opinion from “a qualified VA physician” because of the complex medical questions involved. However, the AOJ obtained opinions from a nurse practitioner and a physician’s assistant, neither of whom are qualified VA physicians as requested. Significantly, the April 2020 VA nurse practitioner noted that the Veteran required an expert opinion and should be seen by a neurologist for further workup, thus supporting the Board’s determination that an opinion by a physician was warranted. Thus, a remand for another opinion, by an appropriate specialist physician, is required. In addition, now that the Veteran’s radiculopathy of the right lower extremity has been service connected secondary to the Veteran’s service-connected lumbar spine disability, an opinion should be sought as to whether any disability of the left lower extremity is also related to his service-connected lumbar spine disability. In this regard, the lack of a diagnosis of peripheral neuropathy or radiculopathy of the left lower extremity would not be fatal to the claim, as a diagnosis is not required to meet the current disability requirement and symptoms such as pain, numbness, or tingling, can constitute disability if they cause impairment in earning capacity. Saunders, 886 F.3d at 1364-65. The Board notes that there was a February 2014 medical note from Kaiser Permanente that contains a diagnosis of peripheral neuropathy. Finally, the Veteran contends that his peripheral neuropathy is related to his Agent Orange exposure. While peripheral neuropathy is not one of the listed disabilities presumptively service connected due to Agent Orange exposure under 38 C.F.R. § 3.309(e), service connection can still be granted on a direct basis. It has been established that the Veteran has been presumed exposed to Agent Orange while on active duty. Therefore, on remand, an opinion should also be sought as to whether any peripheral neuropathy of the lower left extremity is related to the Veteran’s presumed in-service Agent Orange exposure. Accordingly, the matters are REMANDED for the following action: Obtain an opinion from an appropriate specialist physician as to the nature and etiology of any disability of the left lower extremity. If an examination is deemed necessary, one should be conducted, to include via telehealth if appropriate. In this regard, a diagnosis is not required to establish disability, as symptoms such as pain, numbness, or tingling can constitute disability if they cause impairment. The physician should opine as to whether it is at least as likely as not (50 percent probability or more) that any disability of the left lower extremity, to include symptoms causing impairment, is either (a) caused or (b) aggravated by a service-connected disability, to include the now service-connected lumbar spine disability and diabetes. If aggravation is found, the baseline level of the disability prior to aggravation should be indicated, if possible. Alternatively, if peripheral neuropathy is diagnosed, the physician should opine as to whether it is as likely as not (50 percent probability or more) that the Veteran’s peripheral neuropathy of the left lower extremity is related to his presumed in-service Agent Orange exposure. In this regard, the fact that peripheral neuropathy is not on the list of diseases presumed service connected in veterans exposed to Agent Orange should not be the basis for an opinion that this veteran’s peripheral neuropathy is not related to his Agent Orange exposure. The February 2014 Kaiser Permanente medical note should be addressed. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be considered in formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board JR Cummings, 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.