Citation Nr: 21062877 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-60 452 DATE: October 12, 2021 REMANDED The claim for service connection for migraines, to include as secondary to service-connected lumbosacral strain, is remanded. The claim for service connection for radiculopathy of the left lower extremity (claimed as sciatica), to include as secondary to service-connected lumbosacral strain, is remanded. The claim for service connection for radiculopathy of the right lower extremity (claimed as sciatica), to include as secondary to service-connected lumbosacral strain, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1970 until his honorable discharge in June 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2013 and March 2017 decisions by a Regional Office of the United States Department of Veterans Affairs (VA). In September 2019, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). In December 2019, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain new VA examinations and medical opinions addressing the etiology of the Veteran's claimed migraines and bilateral lower extremity radiculopathy disabilities, to include opinions addressing secondary service connection in relation to the Veteran's service-connected lumbosacral strain. The case now returns to the Board for adjudication. Unfortunately, the Board finds that there has not been substantial compliance with the Board's previous remand directives regarding the issues on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. The claim for service connection for migraines, to include as secondary to service-connected lumbosacral strain, is remanded. 2. The claim for service connection for radiculopathy of the left lower extremity (claimed as sciatica), to include as secondary to service-connected lumbosacral strain, is remanded. 3. The claim for service connection for radiculopathy of the right lower extremity (claimed as sciatica), to include as secondary to service-connected lumbosacral strain, is remanded. Opinions addressing the theory of aggravation When VA seeks to obtain a medical opinion, the Secretary must ensure that the opinion provided is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An adequate opinion must provide "a reasoned medical explanation" linking the facts of the case with the examiner's conclusions. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Of particular relevance, a medical examination or opinion that fails to address whether a service-connected disability aggravated the claimed disability is inadequate to inform the Board on the issue of secondary service connection. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Causation and aggravation are "independent concepts," and an examiner must address both when requested to do so. Atencio v. O'Rourke, 30 Vet. App. 74, 91 (2018). Here, the examiner was requested to address both theories of secondary service connection. On review of the medical opinions offered by the February 2020 VA examiner, the Board finds that the examiner did not address the theory of aggravation for any of the Veteran's claimed disabilities. The examiner offered opinions addressing direct service connection and the theory of causation as to secondary service connection. There is no explicit statement about whether the Veteran's migraines or bilateral lower extremity radiculopathy were aggravated by the Veteran's service-connected lumbosacral strain. Therefore, remand is required. Migraine VA opinion As part of the February 2020 VA examiner's medical opinion addressing secondary service connection, she stated, "This examiner could not find any available medical literature linking the etiology of migraine headaches to lumbar strain." The examiner offered a negative nexus opinion. Following return of the appeal to the Board, the Veteran submitted an August 27, 2021, Post-Remand Appellate Brief and within it cited two medical/scientific articles addressing a link between low back pain and headache disorders. The Veteran has not explicitly attempted to link his migraine disability with the cited literature, but it is implied that he believes a link exists between his lumbosacral strain and migraines based on the literature. As the evidence cited by the Veteran is in direct conflict with the VA examiner's statement, the Board finds remand is required to obtain an addendum opinion addressing the Veteran's cited literature so that the Board may make a fully informed decision. Radiculopathy VA examination and opinions The February 2020 VA examiner diagnosed the Veteran with left lumbar radiculopathy and found no evidence of right lower extremity radiculopathy. Within the examiner's opinion, however, she consistently referred to right lower extremity radiculopathy rather than left lower extremity radiculopathy within the rationale. This was likely a typographical error, but it should nonetheless be clarified by the examiner on remand. More significant, the Board finds an addendum opinion is necessary to address the conflicting information within the record as to whether the Veteran experienced right lower extremity radiculopathy during the claim period. The requirement for a veteran to have a "current disability" is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Even though the February 2020 VA examiner did not diagnose the Veteran with right lower extremity radiculopathy (or another right lower extremity nerve condition), an April 2019 VA-contracted examiner did diagnose the Veteran with moderate left and right lower extremity radiculopathy. The February 2020 VA examiner did not address the conflicting diagnoses. For example, the examiner did not explain why her diagnosis was more accurate, or why the April 2019 diagnosis was inaccurate, or explain whether the diagnoses may nonetheless be compatible. Consequently, remand is required to obtain an addendum opinion addressing the conflicting diagnoses between the April 2019 and February 2020 examinations. Necessarily, an opinion addressing the etiology of the Veteran's right lower extremity radiculopathy may be required if the Veteran did in fact have such a diagnosis during the claim period. In addition, the Board finds that it may be useful for the examiner to understand that the United States Court of Appeals for the Federal Circuit has held that pain alone may constitute a disability, even without an identifiable underlying pathology. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The veteran's pain, however, must amount to a functional impairment to constitute a disability. Id. at 1367. "Functional impairment," the Federal Circuit noted, is defined as the inability of the body or a constituent part of it " 'to function under the ordinary conditions of daily life including employment.' " Id. at 1363 (quoting 38 C.F.R. § 4.10). In other words, pain alone can qualify as a disability where it diminishes the body's ability to function, even where it is not diagnosed as connected to a current underlying condition. Id. Next, within his August 27, 2021, Post-Remand Appellate Brief, the Veteran cited to information on the Cleveland Clinic's website for the proposition that his lumbosacral strain placed him at risk for sciatica. He further asserts that his lumbar "flare-up and pain in 1990-91 merely awakened the old injury from 1972 and was not the start of a new" back disability. Since the Board is remanding the Veteran's bilateral lower extremity radiculopathy claims on other bases, it finds that an addendum opinion should also address the Veteran's citation to the Cleveland Clinic's website and assertion that his back flare-up and pain in 1990-91 was a continuation of his 1972 in-service injury. Miscellaneous issue Finally, within his August 27, 2021, Post-Remand Appellate Brief, the Veteran stated, The remand orders from the Board are clear, and they state specifically, "The examiner must specifically address the Veteran's lay statements regarding ongoing knee pain since service, which are deemed credible despite not being reflected in treatment records continually after service." The inconsistency is confusing and arbitrary. August 2021 Post-Remand Appellate Brief, at 2. The Board' s December 2019 Remand Order made no such statement and provided no such directive. Therefore, this argument is meritless and is not a basis on which to remand. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from the February 2020 examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's migraines. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner should read this REMAND order in full. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's migraines had their onset in or are otherwise etiologically related to an in-service event, injury, or disease. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's migraines were caused by (proximately due to or as the result of) his service-connected lumbosacral strain. (c.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's migraines were aggravated by his service-connected lumbosacral strain. The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression. In rending his or her opinions, the examiner should address the following, in addition to any other relevant evidence: (a.) The cited article within the Veteran's August 27, 2021, Post-Remand Appellate Brief: The association between headache and low back pain: a systematic review, available at https://thejournalofheadacheandpain.biomedcentral.com/articles/10.1186/s10194-019-1031-y (b.) The cited article within the Veteran's August 27, 2021, Post-Remand Appellate Brief: Persistent headache or back pain "twice as likely" in the presence of the other, available at https://www.sciencedaily.com/releases/2019/09/190919114854.htm The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his headaches/migraines, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of headaches/migraines in service or the assertion that the Veteran's service-connected lumbosacral strain led to his headaches/migraines. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. After any additional records are associated with the claims file, obtain an addendum opinion from the February 2020 examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's claimed (i) left lower extremity radiculopathy and (ii) right lower extremity radiculopathy. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner should read this REMAND order in full. The examiner is asked to provide an opinion regarding: Left lower extremity radiculopathy (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's left lower extremity radiculopathy had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's left lower extremity radiculopathy was caused by (proximately due to or as the result of) his service-connected lumbosacral strain. (c.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's left lower extremity radiculopathy was aggravated by his service-connected lumbosacral strain. The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression. Right lower extremity radiculopathy (a.) Whether the Veteran has a current diagnosis of right lower extremity radiculopathy? If not, whether the Veteran has had a diagnosis of right lower extremity radiculopathy at any time during the claim period, beginning around November 2016? The examiner's attention is directed to an April 16, 2019, VA-contracted examination entitled, "Back (thoracolumbar spine) conditions disability benefits questionnaire" in which that examiner endorsed that the Veteran had moderate radiculopathy of the left and right involving the L4/L5/S1/S2/S3 nerve roots (sciatic nerve). The examiner should explain how that diagnosis may (or may not) be reconciled with the examiner's prior diagnosis that the Veteran did not have any right lower extremity radiculopathy at the time of his February 2020 examination. (b.) Whether the Veteran's reports of back flare-ups and pain between 1990-91 were continuations of his in-service back injury from 1972, or whether the back flare-ups and pain he experienced in 1990-91 were separate and distinct conditions unrelated to his 1972 back injury. Please explain. (c.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's right lower extremity radiculopathy had its onset in or is otherwise etiologically related to an in-service event, injury, or disease. (d.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's right lower extremity radiculopathy was caused by (proximately due to or as the result of) his service-connected lumbosacral strain. (e.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's left lower extremity radiculopathy was aggravated by his service-connected lumbosacral strain. The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression. In rending his or her opinions, the examiner should address the following, in addition to any other relevant evidence: (a.) The cited information within the Veteran's August 27, 2021, Post-Remand Appellate Brief: Cleveland Clinic Website, available at https://my.clevelandclinic.org/health/diseases/12792-sciatica (b.) The Veteran's testimony from his September 2019 hearing that before his August 1990 back injury, he experienced a worsening of symptoms associated with his back, which he believes represented a continuation of his in-service back injury from 1972. (c.) The October 1991 VA examiner's opinion that the Veteran's discogenic disease in his lumbosacral spine was etiologically related to his service-connected lumbosacral strain. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of radiculopathy or associated symptoms in service or the assertion that the Veteran's service-connected lumbosacral strain led to lower extremity radiculopathy. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.