Citation Nr: 21065432 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-32 190 DATE: October 26, 2021 REMANDED Entitlement to an initial rating in excess of 40 percent for degenerative disc disease of the lumbar spine, post-fusion decompression L5-S1, with scar is remanded. Entitlement to an initial rating in excess of 20 percent for lumbar radiculopathy of the left lower extremity is remanded. Entitlement to service connection for a neck disorder, to include as secondary to degenerative disc disease of the lumbar spine, post-fusion decompression L5-S1, with scar, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1976 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In July 2019, the Board remanded the instant claims for additional development and, in October 2020, denied a higher initial rating for the Veteran's back disability, awarded an initial 20 percent rating, but no higher, for his lumbar radiculopathy of the left lower extremity, and denied service connection for a neck disorder. The Veteran appealed such denials to the United States Court of Appeals for Veterans Claims (Court) and, in June 2021, the Court granted the parties' Joint Motion for Partial Remand (JMPR), and vacated and remanded the October 2020 decision as to such issues. The case now returns to the Board for further appellate review. In the JMPR, the parties found that, in light of treatment records dated in 2009 suggesting the presence of bowel/urinary incontinence and a right hip disorder associated with the Veteran's back disability, the Board was to consider whether claims for secondary service connection for such disorders had been raised by the record. In support of such directive, the parties cited to Bailey v. Wilkie, 33 Vet. App. 188 (2021), for the proposition that VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability (emphasis added). In the instant case, the Veteran's back disability was not service-connected until June 14, 2013. Thus, as a claim for an increased rating for the Veteran's back disability was not pending in 2009, such treatment records cannot serve to raise a claim for service connection for a disorder as secondary to such service-connected disability. Nonetheless, the Board observes that consideration of whether separate ratings are warranted for bladder or bowel impairment associated with the Veteran's back disability is part and parcel of his claim for an increased rating for such disability. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1); Chavis v. McDonough, 34 Vet. App. 1 (2021). Furthermore, the Veteran is advised that, if he wishes to pursue a claim for service connection for a right hip disorder as secondary to his back disability, he should file the appropriate form with the Agency of Original Jurisdiction (AOJ). All Claims The parties to the JMPR found that the Board erred by failing to ensure that the duty to assist was satisfied as VA did not attempt to obtain private treatment records. Specifically, the parties noted that a Social Security Administration record reflected treatment by private physician, Dr. S.J.P., for a back injury and herniated disc in the left of the neck. The parties further noted that a January 2009 VA treatment record indicated that the Veteran "had back[]surgery don[e] in 2007- [Dr. S.J.P.] in New York. Therefore, a remand is necessary for the AOJ to attempt to obtain such outstanding private treatment records. 1. Entitlement to an initial rating in excess of 40 percent for degenerative disc disease of the lumbar spine, post-fusion decompression L5-S1, with scar. 2. Entitlement to an initial rating in excess of 20 percent for lumbar radiculopathy of the left lower extremity. In the June 2021 JMPR, the parties found that, in denying the Veteran's initial rating claims, the Board failed to ensure substantial compliance with its July 2019 remand. In this regard, the parties observed that, as relevant, such remand directed a new VA back examination be obtained that: (1) recorded the results of range of motion testing for pain on both active and passive motion, and on weight-bearing and nonweight-bearing; and (2) indicated whether the Veteran's back disability resulted in erectile dysfunction. However, the October 2019 VA examination failed to provide such information. Thus, the parties found that there had not been substantial compliance with the July 2019 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, a remand is necessary in order to afford the Veteran another VA examination that complies with the Board's July 2019 remand directives. 3. Entitlement to service connection for a neck disorder, to include as secondary to degenerative disc disease of the lumbar spine, post-fusion decompression L5-S1, with scar. In its October 2020 decision, the Board found, as relevant, that the Veteran's current neck disorder, diagnosed as degenerative arthritis/degenerative disc disease at November 2013 and October 2019 VA examinations, was not related to his military service based, in part, on a July 2015 VA medical opinion. However, in the JMPR, the parties found that the Board had erred in failing to provide an adequate statement of reasons or bases regarding the adequacy of such opinion. In this regard, the parties observed that the July 2015 VA examiner's opinion was based, in part, on the absence of "medical provider documentation" corroborating the Veteran's alleged in-service injury. However, pursuant to Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007), a VA examination is inadequate where a VA examiner ignores the veteran's lay statements and relies on the absence of evidence in the service treatment records to provide a negative opinion. Here, the Board notes that the examiner did not address the Veteran's report during his November 2018 Board that, since his in-service injury, he experienced neck pain on and off over the years. Therefore, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing such matter. The matters are REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, obtain all outstanding private treatment records pertaining to his back and neck disorders, to include those from Dr. S.J.P. Make at least (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected back disability. The record, including a copy of this remand, must be made available for review in connection with the examinations and all indicated tests and studies should be undertaken. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's back disability. (B) The examiner should record the range of motion of the back observed on clinical evaluation in terms of degrees for all relevant planes. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups, on repetitive use, or repeated use over time, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of his back, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (E) The examiner is also requested to indicate whether the Veteran's back disability results in any objective neurologic impairments other than radiculopathy of the left lower extremity and, if so, the nature and severity of such neurologic impairment. In this regard, the examiner should specifically indicate whether the Veteran's back disability results in erectile dysfunction, or bladder or bowel impairment. (F) With regard to the Veteran's radiculopathy of the left lower extremity, the examiner should identify the nature and severity of such disability. In this regard, the examiner is requested to indicate whether the Veteran's radiculopathy of the left lower extremity results in mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis of the sciatic nerve. (G) The examiner should also state whether the Veteran has intervertebral disc syndrome and, if so, the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. (H) The examiner should also comment upon the functional impairment resulting from the Veteran's back disability.. A rationale should be provided for any opinion offered. 3. Return the record, to include a copy of this remand, to the VA examiner who rendered the July 2015 opinion addressing the etiology of the Veteran's neck disorder for an addendum opinion. If he is not available, the record should be provided to an appropriate examiner so as to render the requested opinion. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's neck disorder had its onset in, or is otherwise related to, his military service, to include his 1977/1978 in-service injury (feeling a crunch after balancing an AC unit on his head). In offering such opinion, the examiner must consider and discuss the Veteran's lay statements concerning the onset and continuity of his neck symptomatology, to include his report at the November 2018 Board hearing that he experienced neck pain on and off over the years. The examiner is advised that the sole basis of a negative opinion may not be the lack of complaints, treatment, or diagnosis referable to a neck disorder in the Veteran's service treatment records. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, 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.