Citation Nr: 21063196 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 16-55 239 DATE: October 13, 2021 REMANDED Entitlement to service connection for recurrent thoracolumbar spine disability, to include degenerative disc disease, is remanded. Entitlement to service connection for right lower extremity disability, to include right foot peripheral neuropathy, is remanded. Entitlement to service connection for left lower extremity disability, to include left foot peripheral neuropathy, is remanded. Entitlement to service connection for urological disability, to include low urinary flow, is remanded. REASONS FOR REMAND The Veteran served in the United States Army on active duty from October 1968 to February 1972, with additional service in the Reserve. The issues come before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board in March 2020 and June 2021. The Board remanded to provide further development. 1. Entitlement to service connection for recurrent thoracolumbar spine disability, to include degenerative disc disease, is remanded. The Veteran contends that his current low back disability, to include degenerative disc disease of the lumbar spine, had its onset in service and is otherwise related to active duty. Pursuant to the June 2021 Board remand, the Veteran underwent a VA back examination in September 2021. The VA examiner provided the diagnosis of degenerative disc disease, noting the date of diagnosis as April 1994. Additionally, the examination noted the Veteran's lumbar fusion procedure from August 2016, with residual pain and scarring. Following a review of the record and an in-person examination, the VA examiner provided the medical opinion that it was less likely than not that any currently diagnosed condition related to the Veteran's thoracolumbar spine disability incurred in or was caused by the Veteran's claimed in-service injury, event, or illness. The VA examiner noted the Veteran's complaints and treatments for back pain in active service. However, the examiner reported the Veteran did not report back pain at the time of separation in 1972 and the Veteran's x-ray revealed normal findings for the lumbar spine. Further, the examination noted the Veteran did not complain of low back pain until 1994. Thus, the examiner concluded that there was no direct connection between the Veteran's back pain in service, and back pain in 1994 or 2016. The September 2021 VA medical opinion is inadequate to adjudicate the Veteran's claim, as the opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The VA examiner stated the record was silent for any complaints of back pain until 1994. However, the Veteran underwent a VA examination to address the Veteran's claimed lumbar back disability in May 1972. The Veteran complained of a history of low back pain since 1964. The Veteran reported considerable difficulty while in service, notably when he lifted or with strenuous activity. The Veteran reported that in December 1970, the Veteran experienced an incapacitating episode of back pain which prevented the Veteran from rolling over. He noted that he was unable to move his lower extremities for 20 minutes. Additionally, the September 2021 VA examiner failed to address the Veteran's private neurology opinion from December 1970 service treatment records, which noted the Veteran's back pain resulted from a degenerating upper lumbar disc. Here, the September 2021 examiner listed the record as reviewed and noted the findings as considered for the medical opinion provided; however, the examination failed to provide further explanation or analysis of the Veteran's medical record. Accordingly, remand is required to address the evidence of record favorable to the Veteran, to include the Veteran's December 1970 private neurologist's opinion. Thus, the Board finds the September 2021 VA examination is inadequate, and remand is required to provide the Veteran a medical opinion accurately addressing the Veteran's medical history. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 2. Entitlement to service connection for bilateral lower extremity disabilities, to include bilateral foot peripheral neuropathy, is remanded. In June 2016, the Veteran underwent a VA examination to address the Veteran's peripheral nerve condition affecting his left and right feet. The VA examiner provided the diagnosis of peripheral neuropathy of the bilateral lower extremities with an unknown date of diagnosis. The Veteran reported developing numbness in his right foot and toes in the 1980s, and in the left foot since the early 2000s. The VA examiner noted the Veteran's condition was affected by the sciatic nerve, resulting in bilateral incomplete paralysis of the feet. The VA examination provided the medical opinion that the Veteran's claimed peripheral neuropathy condition was less likely than not caused by Agent Orange exposure during service. The examiner noted that there was no documented evidence of a diagnosis or treatment for early-onset peripheral neuropathy. Additionally, the VA examiner reported the Veteran did not develop pertinent symptoms within one year of Agent Orange exposure. The Board must consider all theories of entitlement either expressly raised by the claimant or which are reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009). Further, when VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination adequately considers the evidence of record addressing the Veteran's medical history. See Barr, 21 Vet. App. at 312; see also Nieves-Rodriguez, 22 Vet. App. at 304. Moreover, the VA examiner must address the Veteran's relevant lay statements to provide the Board with an adequate medical opinion. Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). A review of the Veteran's claims file shows the Veteran complained of neuropathy in his feet since the 1980s. Additionally, the record contains a January 1971 letter from the Veteran's Medical Unit Commander, reporting the Veteran experienced an episode of tremors and loss of control of motor activity resulting in a fall in January 1971. As the VA medical opinion does not adequately address the Veteran's medical history, remand is needed to provide the Veteran an opinion that accurately addresses the Veteran's lay evidence of record and clearly addresses the Veteran's claimed condition. See Barr, 21 Vet. App. at 312. The Board notes that the unavailability of presumptive service connection for some conditions based on exposure to herbicide agents does not preclude direct service connection based on herbicide agent exposure. 38 C.F.R. §§ 3.307, 3.309; Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The June 2016 VA examination provided an opinion based on the contention that the Veteran's claim for peripheral neuropathy of the feet was early-onset neuropathy, and therefore based on presumptive service connection. A medical opinion was not provided addressing the Veteran's symptoms as they related directly to active service in the Republic of Vietnam, including exposure to herbicide agents. Accordingly, remand is needed to provide the Veteran with a VA examination that provides a medical opinion regarding the Veteran's direct service connection, as well as presumptive service connection theories of entitlement. 3. Entitlement to service connection for a urological disability, to include low urinary flow, is remanded The Board finds that the Veteran's claim for a urological disorder, to include as secondary to peripheral neuropathy, is inextricably intertwined with the Veteran's claim for entitlement to service connection for his lumbar spine disability, as the outcome of the Veteran's claim may have a substantial effect on the necessary criteria for the Veteran's urological disorder for the entire period on appeal. Therefore, the Veteran's claim for a urological disorder must also be remanded pending adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Further, the Veteran contends that his urological disorder is related to exposure to herbicide agents during his service in the Republic of Vietnam. VA has not provided an examination to address the Veteran's claimed urological disorder. VA's duty to assist includes providing an examination and obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. VA has a duty to provide the Veteran a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment and competent lay evidence of symptomatology, so that the evaluation of the claimed disability will be fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see Miller, 32 Vet. App. at 260. The Board finds that a remand is required to obtain a medical examination with an opinion addressing the nature and etiology of the Veteran's claimed urological disorder as secondary to peripheral neuropathy, to include as due to herbicide agent exposure in the Republic of Vietnam. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the September 2021 VA examiner regarding the Veteran's lumbar spine condition, to include degenerative arthritis and disc degeneration, or, if not available, another appropriately qualified VA medical professional. If the examiner determines that an examination is needed to provide the requested opinion, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file should be reviewed in conjunction with the examination. A copy of this remand should be made available to the examiner. Following a review of the evidence of record, to include the Veteran's lay statements of the onset and continuity of symptoms of his condition, the examiner must opine whether it is at least as likely as not (50 percent probability or more) that the Veteran's lumbar spine condition, to include degenerative arthritis and disc degeneration, had its onset during or is otherwise etiologically related to active-duty service. For the purposes of this examination, the VA clinician must address: (1) the Veteran's December 1970 private neurologist's assessment noting the Veteran's "degenerating upper lumbar disc;" (2) the January 1971 correspondence from the Veteran's Medical Unit Commander noting increasing back pain; and (3) the May 1972 VA examination regarding the Veteran's aggravating episodes of back pain every two weeks. The examiner must provide a comprehensive report, including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 2. Schedule the Veteran for a VA examination with an appropriate examiner, to determine the etiology of the Veteran's bilateral peripheral neuropathy of the lower extremities. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail, and correlated to a specific diagnosis. Following a review of the evidence of record, to include the Veteran's lay statements of the onset and continuity of symptoms of his conditions, the examiner must opine as to: a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral lower extremity disabilities, to include bilateral peripheral neuropathy of the feet, had their onset during or is otherwise etiologically related to active-duty service, to include as a result of exposure to herbicide agents in the Republic of Vietnam. If no direct service connection is found, please provide a medical opinion addressing the Veteran's bilateral lower extremity neuropathy as secondary to the Veteran's lumbar spine condition, to include degenerative arthritis and disc degeneration. Please opine as to: b) Whether it is at least as likely as not (50 percent probability or more) the Veteran's bilateral lower extremity neuropathy was proximately caused by, or the result of, lumbar spine condition, to include degenerative arthritis and disc degeneration. c) Whether it is at least as likely as not (50 percent probability or more) the Veteran's bilateral lower extremity neuropathy was aggravated by the Veteran's lumbar spine condition, to include degenerative arthritis and disc degeneration. For the purposes of this examination, the VA clinician must address the Veteran's January 1971 correspondence noting the Veteran's episode of tremors and loss of motor activity resulting in a fall. The examiner must provide a comprehensive report, including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 3. Schedule the Veteran for a VA examination with an appropriate examiner, to determine the etiology of the Veteran's urological disorder, including low urinary flow. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail, and correlated to a specific diagnosis. Following a review of the evidence of record, to include the Veteran's lay statements of the onset and continuity of symptoms of his condition, the examiner must opine as to: a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's urological disorder, including low urinary flow, had its onset during or is otherwise related to active-duty service, to include as a result of exposure to herbicide agents in the Republic of Vietnam. If no direct service connection is found, please provide a medical opinion addressing the Veteran's urological disorder, including low urinary flow, as secondary to the Veteran's bilateral lower extremity neuropathy or lumbar spine condition, to include degenerative arthritis and disc degeneration. Please opine as to: b) Whether it is at least as likely as not (50 percent probability or more) the Veteran's urological disorder, including low urinary flow was proximately caused by, or the result of, the Veteran's bilateral lower extremity neuropathy or lumbar spine condition, to include degenerative arthritis and disc degeneration. c) Whether it is at least as likely as not (50 percent probability or more) the Veteran's urological disorder, including low urinary flow was aggravated by the bilateral lower extremity neuropathy or lumbar spine condition, to include degenerative arthritis and disc degeneration. The examiner must provide a comprehensive report, including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.