Citation Nr: 21075069 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-05 152 DATE: December 17, 2021 REMANDED Service connection for a lumbar spine disability is remanded. Service connection for a sciatic nerve disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from August 1986 to March 1987 and in the U.S. Army from February 2003 to July 2003, October 2004 to January 2006, December 2006 to April 2007, and September 2009 to April 2010. This matter comes before the Board of Veterans' Appeals (Board) from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran testified before the undersigned Veterans Law Judge. A transcript is of record. This matter was previous before the Board in August 2018 and March 2020. The March 2020 Board decision denied entitlement to service connection for a sciatic nerve condition. The Veteran appealed the March 2020 decision to the United States Court of Appeals for Veterans Claims (the Court.) In a July 2021 Joint Motion for Remand (JMR), the Court vacated the March 2020 decision and remanded the matter for adjudication consistent with the JMR. 1. Service connection for a lumbar spine disability is remanded. 2. Service connection for a sciatic nerve disability is remanded. The Veteran seeks service connection for a sciatic nerve disability, to include as secondary to his service-connected cervical spine stenosis or as a result of a lumbar spine disability. The March 2020 Board decision denied entitlement to service connection in part because a September 2019 VA opinion suggested the Veteran's sciatic nerve condition was secondary to a nonservice-connected lumbar spine disability. The July 2021 JMR directed the Board to consider whether the Veteran's claim for a sciatic nerve disability reasonably encompassed a claim for a lumbar spine disability such the lumbar spine disability should be adjudicated without a separate filing to initiate a claim for benefits, pursuant to DeLisio v. Shinseki, 25 Vet. App. 45 (2011). In Delisio, the Court found that when a claim is pending and information obtained reasonably indicates that the claimed condition is caused by a disease or other disability that may be associated with service, VA generally must investigate the possibility of secondary service connection. If that causal disease or disability is related to service, the pending claim reasonably encompasses a claim for benefits for the causal disease or disability, such that no separate filing is necessary to initiate a claim for benefits for the causal disease or disability. In this case, the Veteran filed a claim for a sciatic nerve condition in April 2015. During the Board hearing held in January 2018, the Veteran testified that he was slammed into the ground during service, which led to treatment for a neck and back condition and a secondary nerve condition. A March 2019 VA treatment record notes a history of chronic low back pain with right sciatica. Given the foregoing, the Board finds that it has jurisdiction over the issue of entitlement to service connection for a lumbar spine disability because there is, at the very least, an indication that the sciatic nerve disability may be associated with his reported back injury during service. With regard to the raised issue of entitlement to service connection for a lumbar spine disability, the July 2021 JMR found the March 2020 Board decision was contrary to the Federal Circuit's holdings in Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020) and Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014) in that the Board erroneously determined a claim for a lumbar spine disability was not pending before the RO or Board. In Lang, the Federal Circuit held, in pertinent part, that the Court erred when it declined to remand appellant's claim to the Board to review post-decision Veterans Affairs Medical Center (VAMC) medical records for new and material evidence because his claim remained open until VA determined whether post-decision evidence received within the one-year period was new and material under 38 C.F.R. § 3.156(b). The Federal Circuit further held that VA adjudicators did not need any actual knowledge of VAMC medical records to establish constructive receipt. Similarly, in Beraud, the Federal Circuit reaffirmed that an initial decision remained pending because the VA failed to determine whether evidence the claimant timely submitted after the initial decision was new and material under 38 C.F.R. § 3.156(b). By way of history in this case, the RO denied service connection for a back condition in a July 2013 rating decision because no permanent residual or chronic disability was shown in the Veteran's service medical records or demonstrated by evidence following service. Pursuant to the Federal Circuit's holdings in Lang and Beraud, the Board finds the July 2013 decision did not become final as the RO had constructive possession of VA treatment records that would constitute new and material evidence within one year of the July 2013 rating decision. Specifically, a November 2013 VA treatment record notes lumbar strain and a December 2013 VA treatment record notes mild scoliosis, mild to moderate multilevel degenerative disc space narrowing, and facet osteoarthritis. 38 C.F.R. § 3.156 (b); Bell v. Derwinski, 2 Vet. App. 611 (1992), see also Turner v. Shulkin, 29 Vet. App. 207 (2018); Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). Thus, a claim for a lumbar spine disability has been pending and since the July 2013 rating decision. The RO will have an opportunity to reconsider entitlement to service connection for a lumbar spine disability on the merits before the Board adjudicates the matter. The Board cannot make a fully-informed decision on the issues of service connection for the lumbar spine and sciatic nerve disabilities because no VA examiner has adequately opined on their etiology. The Veteran underwent a VA peripheral nerve examination in September 2019. The examiner opined the Veteran's sciatic nerve disability was less likely than not incurred in service because she was unable to find mention of a back/sciatic problem within the service treatment records. This opinion appears to have based on an inaccurate factual premise as a December 2006 service treatment records show the Veteran reported a back injury and back pain in service. The Veteran also testified that he was slammed into the ground during service and subsequently sought treatment for his back. Accordingly, an addendum opinion must be obtained. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the nature and etiology of the Veteran's claimed lumbar spine and sciatic nerve disabilities. The need for an in-person examination is left to the examiner's discretion. The examiner should review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: a. Is the Veteran's lumbar spine disability and/or sciatic nerve disability at least as likely as not related to service, including any injuries or complaints of back pain during December 2006? b. For any diagnosed lumbar spine arthritis, is it at least as likely as not that such (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? c. If the Veteran's lumbar spine disability is found to be etiologically related to service, is his sciatic nerve disability at least as likely as not either (i) proximately due to or (ii) aggravated (i.e., worsened beyond its natural progression) by the lumbar spine disability? d. Is the Veteran's current sciatic nerve disability at least as likely as not either (i) proximately due to or (ii) aggravated (i.e., worsened beyond its natural progression) by his service-connected cervical spine stenosis. Provide a rationale to support all of the opinions requested in a-d. In providing the requested opinions, consider the Veteran's description of his in-service back injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported back injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. Reconsider the pending appeal for service connection for a lumbar spine disability which has been pending since the July 2013 rating decision. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.Aoughsten, 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.