Citation Nr: 21064024 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-58 170 DATE: October 18, 2021 REMANDED Entitlement to service connection for a back disorder, claimed as lower back pain and stiffness and to include spinal stenosis, is remanded. Entitlement to service connection for numbness and weakness of the left arm is remanded. Entitlement to service connection for left hand numbness (claimed as "all fingers on left hand are numb") is remanded. Entitlement to service connection for a left leg disorder (claimed as uncontrollable shaking of the left leg) is remanded. Entitlement to service connection for frequent falls is remanded. Entitlement to service connection for the loss of ability to stand long, to include the inability to stand without help, is remanded. Entitlement to service connection for loss of full range of motion (claimed as "unable to bend") is remanded. Entitlement to service connection for unable to lift any weight is remanded. Entitlement to service connection for pronounced left side weakness (claimed as "do not have full function left") is remanded. Entitlement to service connection for a neck disorder, claimed as neck fatigue and soreness and to include degenerative changes of the cervical spine, is remanded. Entitlement to service connection for a bladder disorder (claimed as loss of bladder control) is remanded. Entitlement to service connection for a psychiatric disorder, to include major depressive disorder and alcohol abuse disorder due to pain on left, is remanded. Entitlement to service connection for loss of ability to walk unaided is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 1977 to May 1981 and January 1982 to September 1983, including sea service. The Veteran's DD Form 214 for his second period of service reports that he was discharged under other than honorable conditions. However, a June 2017 VA administrative decision found that this designation was not a bar to VA benefits under 38 C.F.R. § 3.12. See also June 2017 VA letter (concluding that this period of service "is considered to have been under honorable conditions for VA purposes and is not a bar to VA benefits"). Accordingly, the Veteran is not prohibited from pursuing VA compensation for disabilities related to this period of service, in accordance with the law. Procedurally, the Veteran withdrew his hearing request in an October 2019 written statement from his representative. See 38 C.F.R. § 20.704(d). In a February 2021 letter, the Veteran's representative requested that the pending claims be expanded to include various back conditions. The current appeal stream previously included requests for service connection for a back condition (claimed as lower back pain and stiffness) and spinal stenosis (which have since been combined and recharacterized), such that the attorney's request is reasonably met in this respect. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Similarly, the Veteran's neck and psychiatric appeals have been expanded and recharacterized as set forth above. Id. Also in the February 2021 letter, the Veteran's representative requested that the pending claims be expanded to include bilateral hip and knee disorders. The Board does not find a sufficient basis upon which to expand the pending claims as requested. Moreover, the February 2021 letter was accompanied by a VA Form 21-526EZ requesting, in pertinent part, service connection for bilateral knee and left hip disorders. These claims were adjudicated in a July 2021 rating decision, for which the Veteran has not yet submitted a Notice of Disagreement (NOD). As such, the current appeals will not be expanded to include bilateral hip and knee disorders. Turning to the instant matters, the Board sincerely regrets the additional delay this will cause but finds that further development is required prior to their adjudication. Specifically, a VA examination is needed to address a number of questions presented by the record, to include the specific diagnoses attributable to the Veteran's reported symptoms; whether the Veteran showed any preexisting neck or back disabilities at service entrance; whether any current back or neck disorders constitute a congenital disorder for VA purposes; and whether any of the claimed disabilities are secondary to various non- and service-connected conditions. See, e.g., private treatment records received in January 2015 (noting congenital lumbar and cervical conditions); November 2015 NOD (reporting preexisting spinal stenosis); July 2017 lay statement (reporting a preexisting neck condition); November 2017 VA Form 9 (associating the claimed disabilities with spinal stenosis); February 2021 representative's letter (associating the claimed disabilities with pes planus). Although the record contains VA back and psychiatric examinations, these evaluations do not adequately address the above inquiries. The matters are REMANDED for the following action: Schedule the Veteran for VA examination(s) to assess the nature and etiology of the claimed disorders. The claims file and a copy of this remand must be made available for review. In particular, the back/neck examiner is asked to offer medical opinions as to: (1) Identify all back and neck disorders shown by the Veteran during the period on appeal, including spinal stenosis. If a diagnosis of arthritis is rendered, the examiner must identify the onset of this condition. The examiner must also clearly identify which of the Veteran's current back/neck conditions are a congenital or developmental defect (including the spinal stenosis). A disease generally refers to a condition that is capable of improving or deteriorating, while a defect is generally not capable of improving or deteriorating. (a) For each defect, the examiner must explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease during a period of active duty that resulted in additional disability. (b) For each non-defect, the examiner must explain whether it is clear and unmistakable that the disability preexisted service. (i) If so, opine whether it is clear and unmistakable (obvious and manifest) that the preexisting disability was not aggravated by service. In other words, is it clear and unmistakable that any worsening of the disability was due to the natural progression of the disability? (ii) If not, opine whether it is at least as likely as not (50 percent probability or more) that the condition began in service, was caused by service, or is otherwise related to service, to include the physical demands thereof? (iiI) Also if not, opine as to whether it is at least as likely as not that the condition was caused or aggravated by the Veteran's service-connected pes planus or the treatment thereof. The neck examiner must also opine as to whether a secondary relationship exists to the Veteran's spinal stenosis or the treatment thereof. The remaining examiners are asked to offer medical opinions as to: (1) Identify all relevant diagnoses shown by the Veteran during the period on appeal, including pain productive of functional impairment. The examiner must fully account for each of the claimed conditions in this respect. As to the psychiatric appeal, a diagnosis of PTSD must be offered in accordance with VA regulations. (2) For each diagnosis, opine whether it is at least as likely as not (50 percent probability or more) that the condition began in service, was caused by service, or is otherwise related to service, to include the physical/mental demands thereof? (3) Also for each diagnosis, opine as to whether it is at least as likely as not that the condition was caused or aggravated by the Veteran's service-connected pes planus, nonservice-connected back disorder (including the pain caused thereby) or the treatments thereof. In formulating the opinions, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. [CONTINUED ON NEXT PAGE] A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.