Citation Nr: 21006078 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 181219-1284 DATE: February 3, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for radiculopathy of the left lower extremity as secondary to a low back disability is remanded. Entitlement to service connection for radiculopathy of the right lower extremity as secondary to a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1981 to December 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2017 and September 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). In August 2018, the Veteran elected to opt into the modernized review system through VA’s Rapid Appeals Modernization Program (RAMP) and selected the Higher-Level Review lane. 38 C.F.R. § 19.2(d). The Agency of Original Jurisdiction (AOJ) issued a RAMP rating decision in December 2018, which considered the evidence of record as of the date VA received the Veteran’s RAMP election form. The Veteran timely appealed the December 2018 RAMP decision to the Board requesting direct review of the evidence considered by the AOJ. See December 2018 VA Form 21-4138. In June 2019, the Board denied the Veteran’s service connection claims. The Veteran subsequently appealed the June 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court issued a Joint Motion for Partial Remand (JMPR), which vacated and remanded the June 2019 Board decision insofar as it denied service connection for a low back disability, a neck disability, a right shoulder disability, left lower extremity radiculopathy, and right lower extremity radiculopathy. 1. Entitlement to service connection for a low back disability, a neck disability, and a right shoulder disability In the August 2020 JMPR, the parties (the Veteran and the Secretary of VA) agreed that the Board erred by failing to ensure compliance with VA’s duty to assist because it relied upon an inadequate VA examination to deny the Veteran’s claims. Specifically, the parties agreed that the last VA opinion of record, in November 2017, was inadequate as to the Veteran’s service connection claims for a low back disability, a neck disability, and a right shoulder disability. In this regard, the November 2017 VA examiner provided a negative nexus opinion for the Veteran’s low back and right shoulder disabilities based on the premise, in part, that the Veteran’s symptoms did not arise until many years after service. However, the VA examiner failed to consider or address the Veteran’s report of continued symptomatology for his low back and right shoulder disabilities since service. The Board notes that a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Additionally, although the November 2017 VA examiner concluded that there was no objective evidence in the record confirming that the Veteran had a cervical spine disability, the evidence shows the Veteran has current diagnoses of degenerative joint disease and disc disease of the cervical spine. As such, the November 2017 negative nexus opinion for the Veteran’s neck disability is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based on an inaccurate factual premise has no probative value). Given the above inadequacies and in accordance with the JMPR, the Board finds that the AOJ’s failure to obtain an adequate VA opinion is a pre-decisional duty to assist error that necessitates a remand to obtain medical opinions that include adequate rationale and address the Veteran’s lay assertions of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, in the August 2020 JMPR, the parties agreed that the Board also failed to ensure that VA satisfied its duty to assist by obtaining treatment records identified by the record. Specifically, although a September 2015 VA treatment record notes that the Veteran had rotator cuff surgery on his right shoulder in July 2015 at Winter Haven, the evidence of record does not contain right shoulder surgery records nor does the record show that the AOJ attempted to obtain these treatment records. Likewise, a June 2016 VA treatment record reflects that the Veteran received treatment at Heart of Florida Hospital for his back pain. However, review of the record also does not reflect that the AOJ attempted to obtain these private treatment records. Therefore, a remand is also warranted for the AOJ to fulfill its duty to assist and to attempt to obtain these outstanding private treatment records. 2. Entitlement to service connection for radiculopathy of the right and left lower extremities, to include as secondary to the service connection claim for a low back disability The Veteran contends that his lower extremity radiculopathy is associated with his low back disability. In the August 2020 JMPR, the parties agreed that the service connection claims for right and left lower extremity radiculopathy should be remanded because these claims are inextricably intertwined with the Veteran’s service connection claim for a low back disability. In this regard, because a decision on the remanded issue of entitlement to service connection for a low back disability could significantly impact a decision on the issue of entitlement to service connection for right and left lower extremity radiculopathy, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, as any outstanding private treatment records pertaining to the Veteran’s low back disability, discussed above, may be relevant to the Veteran’s radiculopathy claims, the AOJ’s failure to obtain these treatment records is also a pre-decisional duty to assist error that necessitates a remand. Thus, in accordance with the JMPR, a remand of these claims is also warranted. The matters are REMANDED for the following action: 1. Obtain outstanding private treatment records related to the Veteran’s right shoulder surgery in July 2015. The evidence of record shows the Veteran underwent right shoulder surgery from the Winter Haven Day Surgery Center in Florida in July 2015. The evidence of record also shows the Veteran obtained treatment at the Heart of Florida Emergency Department/Hospital for his low back pain. After securing any necessary releases, attempt to obtain and associate any identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and origin of his low back disability. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the VA examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all low back disabilities, to include any associated radiculopathy found. All findings should be reported in detail. The Board notes that an April 2017 VA treatment record reflects reports of bilateral intermittent radicular symptoms and that a May 2017 private low back Disability Benefits Questionnaire reflects diagnoses of moderate right and left lower extremity radiculopathy. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s low back disability (1) had an onset in service, (2) manifested within one year from service, OR (3) is otherwise related to service, to include from the in-service motor vehicle accident (MVA) in 1988 and/or from wear and tear from in-service training and service duties? In providing the above opinion, the VA examiner must DISCUSS the Veteran’s lay statements of record regarding onset of symptoms and continuity of symptomatology since service. Specifically, the Veteran reported that his low back symptoms began during training in service including at a Ranger training course where he had to repel down mountains. See May 2017 Statement in Support of Claim and August 2017 VA examination. He also reported back problems stemming from the 1988 in-service MVA, which continued to bother him after service and has progressively worsened over the years. See May 2017 Statement in Support of Claim. The examiner should also consider any other pertinent evidence of record, as appropriate. The Veteran’s spouse also reported that the Veteran’s low back pain had progressively worsened over the past seven to eight years. See June 2012 buddy statement. The examiner is advised that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide a complete rationale for all opinions provided. 3. Obtain an addendum opinion from an appropriate medical professional to determine the nature and origin of the Veteran’s neck and right shoulder disabilities. The need for an in-person examination is left to the discretion of the VA examiner. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the VA examiner. The examiner must respond to the following: For both the Veteran’s diagnosed right shoulder disability and diagnosed neck disability provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such (1) had an onset in service, (2) manifested within one year from service, OR (3) is otherwise related to service, to include from the in-service MVA in 1988 and/or from wear and tear from in-service training and service duties? In providing the above opinion, the VA examiner must DISCUSS the Veteran’s lay statements of record regarding onset of symptoms and continuity of symptomatology since service. Specifically, the Veteran reported that his neck disability stemmed from the whiplash injury he sustained during the 1988 MVA and that he continued to experience pain thereafter, which progressively worsened over the years. See May 2017 Statement in Support of Claim and August 2017 VA examination. The Veteran also reported that he experienced shoulder pain during training in service, including at a Ranger training course where he had to repel down mountains, and experienced continual pain following his 1988 MVA. See May 2017 Statement in Support of Claim. The VA examiner should also consider and address as appropriate (1) the July 2012 VA orthopedic treatment record reflecting right shoulder pain for greater than 10 years with an atraumatic onset; and (2) the statement from the Veteran’s spouse, received by VA in January 2013, that the Veteran had been experiencing right shoulder pain for 15 plus years and that he did not seek medical assistance because he said that he just worked with the pain. The examiner is advised that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide a complete rationale for all opinions provided. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.