Citation Nr: 21071753 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 09-26 975 DATE: December 1, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent prior to May 8, 2017 and in excess of 20 percent thereafter for a service-connected lumbar spine disability is remanded. Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected lumbar spine disability, is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to a service-connected lumbar spine disability, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from October 1969 to October 1971, to include service in the Republic of Vietnam. Most recently, in June 2020, the Board of Veterans' Appeals (Board) remanded the matters on appeal for additional evidentiary development. As a result of this development, the Veteran was awarded service connection for an acquired psychiatric disorder other than posttraumatic stress disorder in an August 2021 rating decision. This constitutes a full grant of the benefits on appeal as to this issue; the claim is fully resolved and is no longer before the Board. See A.B. v Brown, 6 Vet. App. 35 (1993). The Board will discuss the remaining issues below. 1. Entitlement to a disability rating in excess of 10 percent prior to May 8, 2017 and in excess of 20 percent thereafter for a service-connected lumbar spine disability is remanded. The Board remanded the Veteran's claim of entitlement to a disability rating in excess of 10 percent prior to May 8, 2017 and in excess of 20 percent thereafter for a service-connected lumbar spine disability in May 2018. Contained in the remand directives was the instruction to indicate whether range of motion measurements for active motion, passive motion, weight-bearing, and/or non-weightbearing could be estimated for other VA examinations conducted during the appeal period. If the examiner was unable to provide such a retrospective opinion as to these specific range of motion findings, he or she was asked to clearly explain so in the report. In response to this remand, the Veteran was provided a VA examination in January 2019. However, the examiner provided only present findings. A retrospective opinion was not provided, nor was an explanation for its absence. The Board is obligated by law to ensure compliance with its directives, as well as those of the appellate courts. Where the remand orders of the Board or the courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance Stegall v. West, 11 Vet. App. 268, 271 (1998). A remand is required to correct this deficiency. 2. Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected lumbar spine disability, is remanded. 3. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to a service-connected lumbar spine disability, is remanded. Unfortunately, another remand is required concerning the issues of entitlement to service connection for a cervical spine disability and for peripheral neuropathy of the left upper extremity. While the Board sincerely regrets further delay in this matter, the Veteran's claims must be remanded for further development to ensure substantial compliance with previous remand directives and to afford him every possible consideration. The Board requested medical opinions regarding whether these claimed disabilities were caused by or aggravated by the Veteran's service-connected disabilities, to include his service-connected lumbar spine disability. These medical opinions were proffered in January 2021. However, the Board finds that they are inadequate for decisional purposes as they are conclusory in nature; they do not contain any rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). Thus, on remand addendum medical opinions which include full rationale with discussion of the facts and medical principles involved. Further, the Board notes that the Veteran served in the Republic of Vietnam during the Vietnam War and herbicide exposure is presumed. While the record does not reflect a diagnosis of "early-onset peripheral neuropathy" sufficient to allow a grant of presumptive service connection, a remand is required to obtain a medical opinion addressing whether the Veteran's peripheral neuropathy of the left upper extremity is due to his established herbicide exposure. 4. Entitlement to a TDIU is remanded. Finally, the issue of entitlement to a TDIU must be held in abeyance at this time because it is inextricably intertwined with the remanded issues. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Following a review of all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements, an appropriate clinician should provide a retrospective opinion for the period prior to the January 2019 VA examination. (a.) Indicate whether range of motion measurements for active motion, passive motion, weight-bearing, and/or non-weight-bearing can be estimated for the other VA examinations conducted during the appeal period prior to the January 2019 examination. The examiner should also indicate whether the Veteran experienced any form of ankylosis and state the total duration of any incapacitating episodes, with due consideration of the Veteran's reports of the inability to walk due to back pain. In addition, the examiner should identify any and all associated neurologic abnormalities during the period prior to January 2019. If the examiner is unable to provide a retrospective opinion as to these specific findings, he or she should clearly explain so in the report. 2. Following a review of all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements, an appropriate clinician should opine on the following: (a.) Whether it is at least as likely as not that the Veteran's current cervical spine disability is causally or etiologically related to his military service, to include any injury or symptomatology therein such as the documented in-service neck strain. (b.) Whether it is at least as likely as not that the Veteran's cervical spine disorder is caused by or aggravated by his service-connected lumbar strain. (c.) Whether it is at least as likely as not that the Veteran's peripheral neuropathy of the left upper extremity is causally or etiologically related to his military service, to include his presumed herbicide exposure, and/or to an injury or symptomatology therein. A medical opinion which concludes that a disease is not related to herbicide exposure solely because there is no presumption of service connection is inadequate. (d.) Whether it is at least as likely as not that the Veteran's peripheral neuropathy of the left upper extremity disorder is caused by or aggravated by his service-connected lumbar strain or a cervical spine disorder. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing these actions, the Agency of Original Jurisdiction should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs then readjudicate the claims. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.