Citation Nr: 21076193 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-46 333 DATE: December 22, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for bilateral lower extremity radiculopathy, as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1977 to December 1977 and from August 1978 to March 1983. This appeal is before the Board of Veterans' Appeals (Board) from a December 2012 rating decision from Department of Veterans Affairs (VA) Regional Offices (RO). The appeal was remanded in June 2021 for additional development. It has since been returned to the Board for further appellate consideration. The Veteran initially filed a claim to establish service connection for a back disability. In determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). A September 2021 VA examination report reveals a diagnosis of bilateral lower extremity radiculopathy. Therefore, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the claim on appeal includes bilateral lower extremity radiculopathy. 1. Entitlement to service connection for a low back disability is remanded. The Board regrets further delay, however additional development is required prior to adjudicating the low back disability claim. Remand is required for an adequate examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In a September 2021 VA examination, the examiner acknowledged the Veteran's service treatment records (STRs) indicating back pain, but provided a negative nexus opinion, noting there is a lack of treatment for the back for the past 40 years that shows the Veteran's current back pain is related to his prior injury. The Board finds however that post-service medical records document treatment and complaints of low back pain. An October 2003 private x-ray indicates he had "minimal cervical spondylosis" with "anterior osteophyte formation at multiple levels." An August 2004 VA record indicates he stated he has had lower back pain since 1985 due to a "dislocated disc." Also, in August 2004 he underwent a VA orthopedic examination and he subjectively reported moderate to severe low back pain and that he was previously told "he had a disc herniation." The impression section states, "Lumbosacral sprain/strain injury with reported disc herniation per the Veteran." A corresponding x-ray revealed "facet arthropathy at the mid and lower lumbar spine" and "no spondylosis or spondylolisthesis." In September 2004, he submitted a statement to the Board asserting that he hurt his back loading and unloading a truck in service and he received treatment from a hospital in Amsterdam which told him "he had a dislocated disc." In November 2004, he received treatment for low back pain and the impression section states, "muscle strain lumbar spine." In January 2006, VA records indicate he sought treatment for lower back pain for "a dislocated disc" and he has experienced pain since 1989. A January 2007 VA psychiatric treatment record indicates he reported that he has experienced back pain due to "injuries sustained during basic training in the military." In April 2007, VA x-rays revealed the following: (1) evidence of old compression fractures involving the vertebral bodies of T-11-12 and L1; and (2) mild degenerative changes in the lumbar spine. A March 2010 VA record indicates an x-ray revealed degenerative changes in the lower lumbar spine with multilevel degenerative spondylitic changes within the lumbosacral spine. In April 2010, VA records indicate he received a spine x-ray which revealed mild to moderate multilevel degenerative spondylosis. In June 2011, VA records indicate he received treatment for lower back pain. August 2011 VA records indicate he reported that he has had back pain for 15 years. During his November 2011 VA general medical examination, he reported lower back pain and a "disc herniation." A physical examination revealed tenderness across the L4-5 area. A January 2012 private medical record indicated he reported low back pain due to an in-service injury. Thus, the September 2021 examiner used an inaccurate characterization to support the negative nexus opinion. Further, the examiner's opinion lacks clarity as to whether the injuries during service caused the Veteran's current diagnosed back disability. Accordingly, remand is required. 2. Entitlement to service connection for bilateral lower extremity radiculopathy, as secondary to a service-connected disability is remanded. This issue must be remanded as it is inextricably intertwined with the issue of entitlement ot service connection for a back disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disability on appeal. 2. Following the receipt of any outstanding records, obtain an addendum opinion regarding the etiology of his back disability. The Veteran's entire claims file, to include a copy of this remand, should be provided to the examiner. If an examination is deemed necessary, it shall be provided. Following a complete review of the record, the examiner is asked to provide the following opinion: For each diagnosed back disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder had onset in or is otherwise related to active military service, to include the Veteran's March 1978 lumbar strain and subsequent treatment. (Continued on the next page) 3. If the Veteran is found to have a back disability etiologically related to an in-service injury, event, or disease, then opine on whether the Veteran's bilateral lower extremity radiculopathy is least as likely as not (i) proximately due to his back disability, or (ii) aggravated beyond its natural progression by his back disability. The clinician must consider and discuss the medical evidence of record. In providing the requested opinions, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. A complete rationale must be provided for each opinion. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.