Citation Nr: 21076708 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-32 629 DATE: December 27, 2021 REMANDED Entitlement to a rating in excess of 20 percent for service-connected osteomyelitis is remanded. Service connection for a bilateral peripheral nerve disability, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active-duty service from November 1993 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 and March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing, both in June 2017 and July 2017. In December 2020 correspondence, the Veteran's attorney withdrew his hearing request. Under 38 C.F.R. § 20.704(e), a request for a hearing may be withdrawn by the Veteran at any time before the hearing. Thus, the Veteran's hearing requests are deemed withdrawn. Discussion The Veteran asserts that the December 2020 VA examination for osteomyelitis was not based on a correct medical history. Purportedly, a VA neurology clinician disclosed that the Veteran had a flare-up of infection requiring intervenous (IV) antibiotics from March 2018 through August 2018 through a peripherally inserted central catheter (PICC) line. Such purported medical treatment does not appear to be contained in the extant 2018 VA treatment records. Upon remand, the RO must ensure that all VA treatment records, most notably those from 2018, are associated with the Veteran's claims file. Following the above-directed development, the RO should order an VA addendum if the purported medical evidence is recovered, and the evidence triggers the need for such. Additionally, in December 2020 correspondence, the Veteran's representative alleged that the Veteran has bilateral lower extremity radiculopathy that was proximately caused by, or aggravated beyond its natural progression by, the Veteran's service-connected disc herniation and degenerative joint disease, status post spinal fusion. However, conclusory generalized lay statements, as found in the December 2020 correspondence without consideration of other evidence, that a service event or illness caused the Veteran's current condition (or lack thereof) are insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (2010). The need for a VA medical examination or medical opinion is triggered if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) the record contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) the record establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) the record indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. Here, although sparse, the evidence of record suggests recurrent symptoms of bilateral lower extremity peripheral nerve pain. Moreover, the medical history commentary in the December 2020 VA osteomyelitis examination includes language to the effect that the Veteran's nerve pain may be associated with his service-connected low back disability. Consequently, the low threshold that triggers the need for a VA examination or opinion have been met and development is required so the Board may adjudicate the Veteran's claim based upon a fully informed clinical evaluation of the Veteran's contended bilateral lower extremity peripheral nerve disability. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative to ascertain whether there are outstanding private records related to the two issues noted above. If so, prepare releases, obtain the records, and associate the records with the claims file. The RO must make two attempts to obtain these relevant records unless the first attempt demonstrates that further attempts would be futile. Should VA not obtain any private records (as indicated), the RO must (1) inform the Veteran of the unobtained records (2) tell the Veteran steps taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain up-to-date VA treatment records and ensure that all VA treatment records, most notably those from 2018, are associated with the Veteran's claims file. 3. After completing the above should be recovered that triggers the need for an addendum opinion or new VA examination, the RO should arrange for such with an appropriate clinician. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the applicable rating criteria, to include episodes of active infection and the date(s) when any active infection occurred. 4. The RO should also arrange for a VA peripheral nerve disorder examination with an appropriate clinician. The clinician must review the entirety of the claims file, including a copy of this remand, and indicate such review in the body of each respective opinion or examination report. All indicated tests should be accomplished and all clinical findings reported in detail. The clinician should respond to the following inquiries: What diagnosis or diagnoses, if any, are apposite to the contended current bilateral lower extremity peripheral nerve disability? When, if any, did the diagnosis or diagnoses first manifest? Do the diagnosis or diagnoses, if any, still exist, when the Veteran's spinal fusion surgeries are considered. AND Whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed bilateral lower extremity peripheral nerve disorder was incurred in, aggravated by, or other attributable to, any aspect of the Veteran's active-duty service? AND Whether it is at least as likely as not that any currently diagnosed bilateral lower extremity peripheral nerve disorder was proximately caused by or aggravated beyond its natural progression by the Veteran's service-connected disabilities. In rendering the above opinions, the clinician must specifically consider and discuss, the Board requests that the clinician address the following evidence, with specificity: 1. the December 2002 VA orthopedic progress note, wherein the Veteran's straight leg test was negative; 2. the April 2003 VA examination, wherein the Veteran's straight leg raising was to 90 degrees; 3. the June 2004 VA orthopedic progress note, wherein the Veteran's straight leg test was negative; 4. the July 2005 VA examination, wherein the Veteran denied any radicular symptoms; 5. the July 2019 Medical Treatment Record - Non-Government Facility, wherein, following a neurology consultation, the Veteran was diagnosed with lumbar radiculopathy (and the clinician provided no rationale to substantiate the finding); 6. the July 2020 VA primary care note, wherein the Veteran's straight leg test was negative; and 7. the December 2020 VA examination, wherein there are notations that "there is a positive straight leg test with shooting pain down both limbs. In addition, there is reduced sensation to temperature and vibration in the lower extremities with altered feeling due to lower back pain." The clinician must provide complete and clear rationales for the conclusions reached. The clinician should provide explanations that consider the record and pertinent medical principles. B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Brady, 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.