Citation Nr: A21016830 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 210927-187399 DATE: October 18, 2021 ORDER Entitlement to service connection for a chronic pain syndrome is granted. Entitlement to service connection for left lower extremity lumbar radiculopathy is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. FINDING OF FACT 1. The Veteran has a chronic pain syndrome that is caused by his service-connected lumbar disc space narrowing with degenerative arthritis and right knee internal derangement with meniscal tear. 2. The Veteran has left lower extremity lumbar radiculopathy that is caused by his service-connected lumbar disc space narrowing with degenerative arthritis. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for chronic pain syndrome have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for left lower extremity lumbar radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1961 to March 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal of a July 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a September 2021 Decision Review Request: Board Appeal (Notice of Disagreement) and elected Direct Review by a Veterans Law Judge. Accordingly, the Board will consider the evidence of record as of the date of the July 15, 2021 rating decision. Entitlement to service connection for chronic pain syndrome and left lower extremity lumbar radiculopathy is granted. The Veteran contends that he has chronic pain syndrome related to his service-connected lumbar disc space narrowing with degenerative arthritis and right knee internal derangement with meniscal tear. Service connection is granted for any current disability that is the result of a disease contracted or an injury sustained while on active-duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (a). A veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail in a service connection claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When the evidence for and against the claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). April 2021 private treatment records note that the Veteran was treated for a chronic pain syndrome. On VA examination in June 2021, he was diagnosed with chronic pain syndrome and bilateral lumbar radiculopathy. The examiner noted symptoms of numbness in the bilateral lower extremities as well as "limping" due to "hip and back issues." The examiner opined that the Veteran's chronic pain syndrome was at least as likely as not proximately due to or the result of his lumbar disc space narrowing with degenerative arthritis and right knee internal derangement with meniscal tear. The examiner reasoned that April 2021 medical records documented treatment with pain medications for pain resulting from the lumbar spine disorder. In a July 2021 addendum report, the same examiner stated that there was "no evidence of chronic pain syndrome or fibromyalgia" and that "there are no findings, signs and or symptoms to support a diagnosis" of chronic pain syndrome. The examiner did not attempt to explain the discrepancy between the June and July reports. The Board assigns little probative value to the July 2021 addendum. Significantly, in his June 2021 report, the examiner referred to specific evidence in the claims file to support his conclusion that the Veteran had a chronic pain syndrome related to his service-connected back and knee disorders. In the July 2021 addendum, the examiner stated only that there was "no evidence" of a chronic pain syndrome. This basis is contradicted by the April 2021 private treatment records noting a chronic pain syndrome and by the examiner's own finding of a chronic pain syndrome in the June 2021 report, based on the April 2021 treatment records. Accordingly, the Board attributes more probative value to the examiner's June 2021 findings. Thus, the evidence is at least in equipoise as to whether the Veteran has a current chronic pain syndrome that was caused by his service-connected lumbar disc space narrowing with degenerative arthritis and right knee internal derangement with meniscal tear. Additionally, as discussed above, the June 2021 examiner diagnosed the Veteran with left lower extremity lumbar radiculopathy. While the Veteran specifically claimed entitlement to service connection for a chronic pain syndrome, on the June 2021 examination for chronic pain syndrome the Veteran described symptoms of bilateral lower extremity numbness which were attributed to a left lower extremity lumbar radiculopathy. The Board finds that the left lower extremity lumbar radiculopathy is reasonably encompassed by the Veteran's claim for service connection for chronic pain syndrome in this case. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that when a veteran files a claim he or she is not seeking benefits only for a particular diagnosis, but for the affliction his condition, whatever that is, causes him or her). Pursuant to Clemons, the claim is interpreted to include the left lower extremity lumbar radiculopathy resulting from the Veteran's lumbar disc space narrowing with degenerative arthritis. Notably, the Veteran has no other diagnosed low back disorders aside from his service-connected lumbar disc space narrowing with degenerative arthritis, and he is already service-connected for right lower extremity lumbar radiculopathy. The evidence is thus in equipoise as to whether the Veteran's left lower extremity lumbar radiculopathy results from his service-connected lumbar disc space narrowing with degenerative arthritis, and service connection for this condition is warranted. Based on the foregoing, entitlement to service connection for both a chronic pain syndrome and left lower extremity lumbar radiculopathy is granted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran was provided a VA examination to consider the nature and etiology of his claimed acquired psychiatric disorder in June 2021. The examiner found that the Veteran did not have a current mental health diagnosis, noting "no mental health evaluations or treatment records found." However, VA treatment records note depression as a "current active problem" as recently as October 2016, and April 2021 private treatment records note depression and sleep disturbance with a history of mood disorders and major depression. As it appears that the examiner did not consider an accurate factual history, the June 2021 examination is inadequate. Failure to obtain an adequate examination constitutes a pre-decisional duty to assist error requiring a remand. Additionally, a September 2009 VA treatment record noted that the Veteran had posttraumatic stress disorder which interfered with his ability to work and that he had applied for Social Security disability benefits. There is no indication that records used in reaching any such determination have been requested. Failure to request these potentially relevant records constitutes a pre-decisional duty to assist error requiring a remand. Entitlement to service connection for a right hip disorder is remanded. The Veteran was provided a VA examination regarding his claimed right hip disorder in June 2021. The examiner diagnosed right hip osteoarthritis and opined that the condition was less likely than not proximately due to or the result of the Veteran's service-connected right knee disability. However, the examiner provided no opinion on aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The June 2021 VA opinion is inadequate on that basis, and failure to obtain an adequate medical examination is a pre-decisional duty to assist error requiring remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's medical records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorders. The examiner should address: a. What diagnosed acquired psychiatric disorders have been present at any time since May 19, 2021? b. For each such acquired psychiatric disorder: is it at least as likely as not proximately caused by lumbar disc space narrowing with degenerative arthritis and/or right knee internal derangement with meniscal tear? c. For each such acquired psychiatric disorder: is it at least as likely as not aggravated by lumbar disc space narrowing with degenerative arthritis and/or right knee internal derangement with meniscal tear? The examiner must take account of an accurate factual history, to include the April 2021 private treatment records noting depression and sleep disturbance with a history of mood disorders and major depression. 3. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of any right hip disorder. The examiner should address: a. What diagnosed right hip disorders have been present at any time since May 19, 2021? b. For each such right hip disorder: is it at least as likely as not aggravated by lumbar disc space narrowing with degenerative arthritis and/or right knee internal derangement with meniscal tear? L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.