Citation Nr: 21075195 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-49 122 DATE: December 17, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for right lower extremity radiculopathy, as secondary to service-connected disabilities, is remanded. Entitlement to service connection for left lower extremity radiculopathy, as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2001 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded the claim in May 2020 for further development. The Board notes that the Veteran's representative has submitted arguments regarding service connection for a cervical spine disorder. See January 2018 VA 646; and October 2019 Appellate Brief. Although the Veteran filed a notice of disagreement (NOD) with respect to the cervical spine disorder and the issue was included in the August 2017 statement of the case (SOC), the Veteran specifically limited his appeal to the claims for a back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy. See Evans v. Shinseki, 25 Vet. App. 7 (2011). Therefore, the cervical spine claim is not before the Board. 1. Entitlement to service connection for a back disability is remanded. The Veteran contends that he injured his back in service when he was involved in a Humvee rollover accident in 2003. In January 2016, the Veteran received a VA examination in which the examiner broadly diagnosed the Veteran with thoracic back pain and low back pain. The examiner described the Veteran's medical history and how, not long after a Humvee rollover accident, the Veteran developed progressive low back pain. However, the examiner did not provide an opinion as to whether the disability was "at least as likely as not" incurred in or caused by service. In August 2017, a VA examiner diagnosed the Veteran with degenerative arthritis of the spine. The examiner provided a negative nexus opinion between the Veteran's low back disability and his military service. The examiner's negative nexus opinion was based on the lack of records documenting continuity of symptoms and did not consider the Veteran's reports of continuity of low back symptoms since service. Accordingly, a remand is necessary to obtain a VA medical opinion regarding the Veteran's claim of service connection for a low back disability. 2. Entitlement to service connection for right lower extremity radiculopathy is remanded. 3. Entitlement to service connection for left lower extremity radiculopathy is remanded. The Veteran contends that his radiculopathy of the right and left lower extremities are secondary to a service-connected disability. See January VA Form 21-526EZ. In an August 2017 VA examination the Veteran was diagnosed with right lower extremity radiculopathy and left lower radiculopathy. However, the examiner did not provide any opinion regarding the etiology of the Veteran's right or left lower extremity radiculopathy. In January 2018, the Veteran submitted a private medical examination he received from Dr. J.J.C. in October 2017. The private medical provider opined that the Veteran's 2003 Humvee rollover accident "as likely as not" contributed to creating and/or exacerbating the Veteran's spondylolisthesis and the resulting radiculopathy. In this case, a remand is necessary for a VA medical opinion regarding the Veteran's claims of service connection for right lower extremity radiculopathy and left lower radiculopathy. To this extent, although the Dr. J.J.C. in October 2017 provided a positive opinion, the Veteran is not service-connected for a spondylolisthesis disability and the October 2017 opinion is unclear as to whether the Veteran has or had cervical spine or low back spondylolisthesis. The matters are REMANDED for the following action: 1. Obtain an opinion from a VA physician regarding the Veteran's claim of service connection for a low back disability. Copies of all pertinent records must be made available to the examiner. After reviewing the record, the physician is asked to answer the following question: Identify the Veteran's low back disabilities since the date of his claim in January 2016. The examiner should specifically address whether the Veteran has been diagnosed as having low back spondylolisthesis, as noted by Dr. J.J.C. in October 2017. Is it at least as likely as not (50 percent probability) that the Veteran's low back disability had its onset in service, manifested to a compensable degree within one year following his separation form service, or is otherwise related to service, to include the 2003 Humvee rollover accident? The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. 2. After completion of the above, obtain an opinion from a physician to determine the nature and etiology of the Veteran's right and left lower extremity radiculopathy. Copies of all pertinent records must be made available to the examiner for review. If the physician determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. After reviewing the claims file, the physician is asked to answer the following questions: (a) Is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed radiculopathy is proximately due to (caused by) the Veteran's service-connected disabilities? (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed radiculopathy has been aggravated by the Veteran's service-connected disabilities? The physician is informed that aggravation here is defined as any increase in disability. The physician is also advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. Ashley Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. E. Bresler 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.