Citation Nr: 21076068 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-36 779 DATE: December 22, 2021 REMANDED Entitlement to service connection for a low back condition, to include degenerative arthritis and cyst ("back condition"), is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2008 to April 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at an August 2019 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. This matter was previously before the Board in April 2021 after a Court of Appeals for Veterans Claims (CAVC) remand. In a December 2020 Joint Motion for Partial Remand (JMPR), the CAVC vacated and remanded the back claim so that the RO could acquire treatment records from Long Beach VA Medical Center (VAMC) beginning in 2012. The RO requested the records and in September 2021 they received a response indicating the Long Beach VAMC did not have records prior to 2013. Thus, the Board finds that the RO substantially complied with the April 2021 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). However, the Board finds remand is warranted. The Veteran has not received a VA examination. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). With respect to an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. In this case the first prong of McLendon has been met as there is evidence of a current back disability. Specifically, an August 2014 VA treatment record reflected an MRI of the spine. The impression revealed degenerative changes of the spine. The second prong has been met. Initially the Veteran argued his back condition was related to an in-service fall while stationed in Spain, where he fell from 15 feet and landed on his back. In a December 2016 statement, the Veteran alternatively asserted that his back condition, including the degenerative arthritis and cyst, were triggered or aggravated by his left and right lower radiculopathy and chronic epididymitis; and that these conditions have been further exacerbated by the in-service fall. Furthermore, in November 2021 the Veteran's attorney submitted an article indicating the ilioinguinal nerve is a branch of the lumbar nerve, in support of the argument that the Veterans back is related to the service-connected spermatic cord and bilateral lower extremity radiculopathy associated with the ilioinguinal nerve. As there is some indication that the back condition may be related to the ilioinguinal nerve, the Board finds remand for a VA examination on secondary service connection is warranted. The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Arrange for an appropriate VA examiner to provide an opinion of the nature and etiology of diagnosed back disability, specifically, whether the back disability is proximately due to, the result of, or aggravated by, the service-connected spermatic cord and/or ilio-inguinal nerve impairment with bilateral lower extremity radiculopathy, The examiner shall provide an opinion as to the following questions: a) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's current back disability is proximately due to or the result of the service-connected spermatic cord and/or ilio-inguinal nerve impairment with bilateral radiculopathy? b) If the answer to the above questions are negative, is it at least as likely as not (a fifty percent probability or greater) that current back disability was aggravated by service-connected spermatic cord and/or ilio-inguinal nerve impairment with bilateral lower extremity radiculopathy (i.e., was there in increase in severity of nonservice-connected back disability that is proximately due to or the result of the service-connected spermatic cord and/or ilio-inguinal nerve impairment with bilateral lower extremity radiculopathy disability). In formulating a response to the above, specific consideration and discussion of the November 2021 article on the ilioinguinal nerve must be included. A detailed rationale supporting the examiner's opinions should be provided. The rationale for any opinion expressed must be provided. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Conduct any other development deemed necessary and then readjudicate the Veteran's claim. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jackman, Bridget 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.