Citation Nr: 21067057 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-64 762 DATE: November 3, 2021 ORDER Entitlement to service connection for right lower extremity sciatica is granted. REMANDED Entitlement to a disability rating higher than 10 percent for service-connected lumbar spine degenerative disc disease (DDD), status post lumbar fusion with history of intervertebral disc syndrome (IVDS), is remanded. Entitlement to a disability rating higher than 10 percent for service-connected cervical spine spondylosis is remanded. Entitlement to a disability rating higher than 10 percent for service-connected left lower extremity sciatic nerve radiculopathy is remanded. Entitlement to service connection for arthritis in the hands and fingers is remanded. FINDING OF FACT It is just as likely as not the Veteran's right lower extremity sciatica is caused by his service-connected lumbar spine DDD and cervical spine spondylosis. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for right lower extremity sciatica. 38 U.S.C. §§ 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1983 to October 1986 and had additional service in the reserves. In January 2021, in support of these claims, the Veteran testified at a "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. Service Connection 1. Entitlement to service connection for right lower extremity sciatica Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or an injury; and (3) evidence of a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 163 (Fed. Cir. 2004). See also 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection on a secondary basis requires evidence showing a service-connected disability caused or is aggravating the condition being additionally claimed. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). There is no disputing the Veteran has diagnosed right lower extremity sciatica. What therefore must be resolved, instead, is whether this disability is attributable to his military service, either in terms of direct attribution to his service or as secondary to meaning caused or aggravated by his service-connected lumbar spine DDD and/or cervical spine spondylosis. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service"). The Board is mindful the Veteran has not been afforded a VA examination to determine the etiology of this claimed condition. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Ordinarily, in this circumstance, the Board might first remand this claim to have this done; however, a preliminary review of the claims file show that the Veteran's service treatment records (STRs) and treating physicians attribute his right lower extremity sciatica to his service-connected back and neck conditions. See, e.g., January 2006 and November 2006 STRs (lumbago with right lower extremity radiculitis); Dr. A.P. Treatment Records (right leg weakness precipitated by back injury and cervical pain; neck and lower back pain radiates to right leg). Indeed, service connection already has been established for neurological impairment in his left lower extremity namely, for radiculopathy affecting the sciatic nerve (so essentially for sciatica in this other lower extremity). Certainly, then, it is as likely as not, if not even more likely than not, this posited correlation regarding his right lower extremity sciatica also is true since there is no equally probative opinion to the contrary. Consequently, resolving all reasonable doubt in the Veteran's favor, the Board finds there is sufficient medical evidence to accept the posited correlation between his service-connected back and neck disabilities and his right lower extremity sciatica. Thus, service connection on a secondary basis is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND 1. Entitlement to a disability rating higher than 10 percent for service-connected lumbar spine DDD, status post lumbar fusion with history of IVDS, is remanded. 2. Entitlement to a disability rating higher than 10 percent for service-connected cervical spine spondylosis is remanded. 3. Entitlement to a disability rating higher than 10 percent for service-connected left lower extremity sciatic nerve radiculopathy is remanded. The Veteran last had a VA compensation examination for these service-connected disabilities in July 2013, so over 8 years ago. The Board sees that, in June 2017, so since, the local Regional Office (RO) submitted a scheduling request for VA compensation examinations to reassess the severity of these conditions, but that the examinations were cancelled after the RO was unable to contact the Veteran. See September 8, 2017 Compensation and Pension Exam Inquiry. However, December 2017 correspondence from him indicates that he never received notification of those scheduled examinations and, consequently, requested that his VA examinations be re-scheduled. He also explained during his more recent January 2021 hearing before this Board that his last VA compensation examinations were scheduled to occur in Dublin, Georgia, which is at least 3 hours from his home, so further reason those prior examinations perhaps did not occur. He therefore asked that, if his VA examinations are rescheduled, he would prefer them in Savannah or Brunswick, Georgia, since only about an hour from his home in comparison. The Board cannot give that guarantee or assurance. In any event, when, as here, available evidence is too old for an adequate evaluation of a Veteran's disability, VA's duty to assist includes providing a new examination. See Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Veteran additionally testified during his January 2021 hearing before this Board that his disabilities have worsened appreciably in the last several years, certainly since he was last examined concerning them. See also September 2014 Notice of Disagreement (NOD). And, as the record does not appear to contain any copies of the appointment letters purportedly sent to him in anticipation of those earlier examinations, the Board will afford him the benefit of the doubt and find good cause to reschedule his examinations. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). That said, in having these examinations rescheduled, the Board reminds the Veteran that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, it is incumbent upon him to cooperate with VA in developing his claims, consistent with the directives discussed below. A pertinent VA regulation, 38 C.F.R. § 3.655, expressly directs the Board to decide a claim based on the available evidence already of record if the Veteran fails to report for an examination scheduled in response to a claim of entitlement to service connection and directs the Board to summarily deny an increased-rating claim when this happens. See also Moody v. Wilkie, 30 Vet. App. 329, 336 (2018); Olson v. Principi, 3 Vet. App. 480, 482-83 (1992); and Turk v. Peake, 21 Vet. App. 565, 568 (2008) (also noting that the Veteran has a duty to cooperate in VA's development of his claim). So he is advised to please remain mindful of this when asked to report for the examinations that are being re-scheduled. 4. Entitlement to service connection for arthritis in the hands and fingers is remanded. The Veteran has not been afforded a VA examination in response to this claim. VA's duty to assist includes providing a medical examination or obtaining an opinion when needed to make a decision on a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). During his January 2021 "virtual" teleconference hearing before this Board, the Veteran testified that he performed manual labor in various environmental conditions (hot, cold, wet, dry) without protective measures for his hands that caused general wear and tear on his joints and, over time, he believes osteoarthritis. As such, the Board finds it necessary to have him undergo a VA examination for a medical nexus opinion to assist in determining the etiology of this claimed condition, especially insofar as its purported relationship with his military service. McLendon, 20 Vet. App. at 79. Lastly, a preliminary review of the record reveals that the Veteran's most recent VA treatment records are from July 2013, so from more than 8 years ago, and the private treatment records currently in the claims file appear to be incomplete. Any additional VA treatment records are within VA's constructive if not actual, possession and are potentially relevant to this claim, so they, too, must be obtained so they may be considered. 38 U.S.C. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). All outstanding private treatment records also must be obtained. Accordingly, these claims are REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain all outstanding records pertinent to these claims, whether VA and/or private, following proper procedures (38 C.F.R. § 3.159(c)). Notify him if unable to obtain records he sufficiently identifies (38 C.F.R. § 3.159(e)). 2. After obtaining all additional treatment or other relevant records, provide the Veteran another VA compensation examination preferably at the VA Medical Center (VAMC) in Savannah or Brunswick, Georgia (rather than in Dublin, Georgia) reassessing the severity of his service-connected lumbar spine DDD, cervical spine spondylosis, and associated left lower extremity radiculopathy. A copy of this remand and all relevant medical and other (lay) evidence must be made available to the examiner. The examiner must review the pertinent evidence, including the Veteran's lay assertions, and undertake all indicated testing and evaluation. All testing indicated by the current Disability Benefits Questionnaire (DBQ) format must be done to in turn ensure the responses address all applicable rating criteria. In particular, the examiner must provide the range of motion of the low back and neck, in degrees. In so doing, the examiner must test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, if possible. If the examiner is unable to conduct the required testing or concludes the required testing is not necessary, he/she must clearly explain in the report why the testing is not required or cannot be completed. The presence of objective evidence of pain, premature or excess fatigability, incoordination and weakness also must be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner shall inquire as to periods of flare-up and note the frequency and duration of any such flare-ups. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional functional impairment - including additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups, name the precipitating and alleviating factors, and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she must clearly explain in the report why the testing is not required or cannot be completed. In terms of the left lower extremity radiculopathy, the examiner is requested to provide information as to the degree of symptomatology (e.g., severe, complete versus incomplete paralysis, etc.), as well as any other symptoms shown upon examination and objective testing. All lay complaints of the Veteran must be considered as well. In reassessing the severity of the Veteran's disabilities, the examiner also is asked to address the functional impact of this disability in terms of the Veteran's ability to meet the demands of a substantially gainful job, whether sedentary or physical, including giving some indication of when this has occurred during the period of appeal under review. It is imperative the examiner discuss the underlying rationale for all opinions, regardless of whether favorable or unfavorable to the claims, preferably citing to specific evidence in the file supporting conclusions including examination findings and/or accepted medical authority. 3. Also afford the Veteran a VA medical examination at either the Savannah or Brunswick, Georgia, VAMC (rather than in Dubin, Georgia) to determine the nature and etiology of the arthritis in his hands and fingers, especially in terms of whether related or attributable to his military service. A copy of this remand and all relevant medical and other records must be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran's lay assertions, and undertake any indicated studies. All testing indicated by the current DBQ format must be addressed. Based on a review of the results of the Veteran's physical examination, the Veteran's statements regarding the development and treatment of his disability, and a thorough review of the claims file, the examiner should answer the following questions: Is it at least as likely as not (a 50 percent probability or greater) that the arthritis in the Veteran's hands and fingers onset during his service, or within a year after his separation from service, or is otherwise related to a disease, an event, or an injury in service including especially to the type of manual labor or activity he alleges caused general wear and tear on his hands and fingers? Rationale for the opinions provided is essential. The absence of evidence of treatment for arthritis in hands and fingers in the Veteran's STRs or even post-service treatment records before initial diagnosis cannot be the sole reason for providing an unfavorable opinion. However, it is permissible to consider this as one of several factors provided there also is explanation of why it is reasonable to expect documentation of specific complaints, etc., in the treatment records. The Veteran is competent to report his symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. It is essential the examiner provides explanatory rationale, whether responding favorably or unfavorably, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.