Citation Nr: 21067765 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-58 119 DATE: November 5, 2021 ISSUES 1. Entitlement to service connection for right lower extremity radiculopathy. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REMANDED Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to January 1968. This case is before the Board of Veterans' Appeals (the Board) on appeal of a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before an RO Decision Review Officer during an April 2017 hearing; a copy of the transcript is of record. When this case was previously before the Board in November 2018, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. In response to the Board's remand, the Veteran was afforded a VA-contracted examination in September 2021 in which the examiner stated that his records were silent for any complaint of lumbar radiculopathy, diagnosis, management, or treatment while in service. The examiner stated that the medical records were also silent of any injury or event causing lumbar radiculopathy. The examiner stated that the Veteran's "diagnosed right lower extremity radiculopathy [was] less likely than not (less than 50 percent probability) incurred in or caused by the lower extremity radiculopathy during service". The examiner also opined that the Veteran's claimed right lower extremity radiculopathy was less likely than not (less than 50 percent probability) proximately due or the result of the service-connected lumbar myositis. The Board notes that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board also notes that in addressing the requested etiology opinion, the VA examiner should be aware of the facts that the United States Court of Appeals for Veterans Claims (Court) recently held in Ward v. Wilkie, 31 Vet. App. 233 (2019), that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). As such, the Board finds that addendum opinions should be sought on remand to include an opinion on aggravation. In regards to the claim for a TDIU, this issue is intertwined with the remanded claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Provide the Veteran's claims file to the September 2021 examiner, or appropriate substitute if this examiner is not available, to provide addendum opinions. An examination is only required if deemed necessary by the examiner. The examiner should: a) Opine whether it is at least as likely as not (50 percent or better probability) that any right lower extremity radiculopathy diagnosed during the pendency of this claim had onset in service or is otherwise related to service. The examiner is reminded that absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford, 3 Vet. App. 87, 89. b) Opine whether it is at least as likely as not (50 percent or better probability) that any right lower extremity radiculopathy diagnosed during the pendency of this claim was aggravated by the Veteran's service-connected lumbar myositis. In providing the etiology opinion, the examiner should be aware of that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). A full and complete rationale for all opinions expressed must be provided. 2. Upon completion of the opinions ordered above, review the reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 3. Readjudicate the issues on appeal. If the benefits sought on appeal are not granted in full, furnish to the appellant and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The appellant should be afforded the appropriate time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.