Citation Nr: 21005629 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-34 126 DATE: February 2, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for right lower extremity neuropathy, to include sciatica is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1980 to April 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision. The Veteran testified before a different Veterans Law Judge (VLJ) at a hearing in May 2017. A transcript of the hearing is of record. The Veteran was informed in a letter dated November 24, 2020 that the VLJ who conducted the hearing was no longer with the Board and was offered an additional hearing. The Veteran did not respond, and the Board will proceed with adjudication. The above issues were remanded by the Board in March 2018 and February 2020 for further development. Unfortunately, the Veteran’s claims must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims, so he is afforded every possible consideration. 1. Entitlement to service connection for a low back disability is remanded. Pursuant to the Board’s February 2020 remand directives, the Veteran’s claim for service connection was remanded, in part, to afford him an examination and medical opinion to determine whether his low back at least as likely as not had its onset during his active service or is otherwise related to his service. Subsequently, the Veteran was afforded a July 2020 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire and corresponding July 2020 medical opinion. The medical opinion, in pertinent part, advised that the examiner was unable to find that the Veteran was diagnosed with, or treated for, arthritis or degenerative disc disease of the upper or lower spine or any other upper or lower spine condition from which arthritis or degenerative might arise. The examiner provided that a March 1982 examination did not indicate any recurrent back condition and that there was no additional information regarding any lower back pain during his active service. The Board finds that the July 2020 medical opinion is inadequate because it is based on an inaccurate factual premise that the Veteran’s service treatment records do not contain evidence of him experiencing lower back pain. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Notably, an April 1982 service treatment record contains a notation of back pain. The July 2020 medical opinion is also inadequate because there is no showing that the examiner considered the Veteran’s lay statements regarding the onset of his back pain in service. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020) (noting that “an examination is inadequate if the medical professional fails to consider the veteran’s own lay reports of symptoms”). In particular, the May 2019 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire shows that the Veteran provided that his low back pain began during his active service as a result of his work as a fueling specialist that required carrying an approximately 30 to 50-pound hose to refuel aircraft. Additionally, during the May 2017 hearing, the Veteran stated that his back pain started during his active service because of his duties as a fueling specialist. Thus, an addendum medical opinion is warranted to address the nature and etiology of the Veteran’s low back disability. 2. Entitlement to service connection for right lower extremity neuropathy, to include sciatica is remanded. Again, pursuant to the Board’s February 2020 remand directives, the Veteran’s claim for service connection was remanded, in part, to afford him an examination and medical opinion to determine whether his right lower extremity neuropathy, to include sciatica, at least as likely as not had its onset during his active service, is otherwise related to his service, or is related to his low back disability. Thereafter, the Veteran was afforded a July 2020 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire and corresponding July 2020 medical opinion. The medical opinion advised that a nexus between a current disability and the Veteran’s active service could not be established. In support, the examiner stated that while the Veteran has subjective complaints of radicular pain, there was no objective evidence during the examination to support a diagnosis of the claimed right lower extremity neuropathy (sciatica) or any radicular condition. The Board finds that the July 2020 medical opinion is inadequate because the examiner did not address the etiology of the Veteran’s right lower extremity neuropathy. See Barr, 21 Vet. App. at 312. During the pendency of the Veteran’s appeal, he was diagnosed with peripheral neuropathy per the May 2019 VA Peripheral Nerves Conditions (not including Diabetic Sensory-Motor Peripheral Neuropathy) Disability Benefits Questionnaire. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the “current disability” requirement is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim” and reversing Board’s denial of service connection where disability resolved during pendency of appeal). The examination report demonstrates that the Veteran has moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness of his right lower extremity. Again, the medical opinion is also inadequate because it does not consider the Veteran’s lay statement contained in the May 2017 hearing that he had right lower extremity pain during his active service. See Miller, 32 Vet. App. at 257. Thus, an addendum medical opinion is warranted to address the nature and etiology of the Veteran’s right lower extremity neuropathy, to include sciatica. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Given that final adjudication of the Veteran’s claims for service connection on remand could result in eligibility for a TDIU rating, or result in additional evidence speaking to the Veteran’s employability, the issue of entitlement to a TDIU rating is inextricably intertwined with the claims for service connection being remanded herein, and the claims should be considered together. See 38 C.F.R. § 4.16(a); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the issue of a TDIU rating must be remanded as well. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2019 to the present. 2. After the above development is completed, obtain an addendum medical opinion for the Veteran’s low back disability. The examiner must review the claims file. The examiner must: (a.) Opine whether the Veteran’s low back disability at least as likely as not (50 percent probability or greater) had its clinical onset during his active service or is otherwise related to service, including as a result of his duties as a fueling specialist. In providing the above opinion, the examiner must consider: • The Veteran’s April 1982 service treatment record that contains a notation of back pain. • The Veteran’s reports of a history of arthritis documented in post-service treatment records as early as 2000. • The Veteran’s request for medication for back pain and an assessment of a history of arthritis in a September 2003 post-service treatment record. • The lay statements contained in the Veteran’s claims file concerning his reported and observed symptoms during and after his active service. Specifically, the Veteran advised that his low back pain began during his active service as a result of his work as a fueling specialist that required carrying an approximately 30 to 50-pound hose to refuel aircraft. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Obtain an addendum medical opinion for the Veteran’s right lower extremity neuropathy, to include sciatica. The examiner must review the claims file. The examiner must: (a.) Opine whether the Veteran’s right lower extremity neuropathy diagnosed in May 2019 at least as likely as not (50 percent probability or greater) had its clinical onset during his active service or is otherwise related to service, including as a result of his duties as a fueling specialist. If it is determined that a low back disability is related to service, the examiner must: (b.) Opine whether the Veteran’s right lower extremity neuropathy diagnosed in May 2019 is at least as likely as not (50 percent probability or greater) is proximately due to the service-connected low back disability. (c.) Opine whether the Veteran’s right lower extremity neuropathy diagnosed in May 2019 is at least as likely as not (50 percent probability or greater) is aggravated beyond its natural progression by the service-connected low back disability. NOTE: The examiner is advised that a “permanent worsening” is not required to establish aggravation. Aggravation may include temporary worsening, or flare-ups, of a disability. The examiner must consider the lay statements contained in the Veteran’s claims file concerning his reported and observed symptoms during and after his active service. Specifically, the Veteran advised that his right lower extremity pain began during his active service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.