Citation Nr: 21006512 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-25 005A DATE: February 4, 2021 REMANDED Entitlement to service connection for a bilateral leg disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, bipolar disorder, and substance abuse, claimed as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1999 to July 1999. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in June 2017, February 2018, February 2020 for further development, including scheduling the Veteran for VA examinations and making additional attempts to obtain outstanding medical records. Pursuant to the February 2018 Board remand, the Agency of Original Jurisdiction (AOJ) requested the Veteran identify any private treatment providers. The Veteran submitted medical release authorizations in September 2018. Of the identified providers, Family Health Centers indicated they had no records related to the Veteran, Southside Rehabilitation and Sports Medicine indicated they could not accept the authorization due to the date of the signature, and no response was received from Dr. Kahn. The Veteran was not notified of these responses, and the November 2019 Supplemental Statement of the Case (SSOC) also did not indicate that records from these providers were unavailable. Thus, remand is again required. Pursuant to the February 2020 Board remand, the Veteran was to be scheduled for appropriate VA examinations for her claims. An October 2020 VA examiner opined that the claimed bilateral leg condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness as leg pain, stress and injury during service was acute only and that there was no chronicity of care. An October 2020 VA examiner also opined that the Veteran's cervical spine disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness as the use of Kevlar vests, backpacks or heavy gear or any impingement, strain, or other injury from such use during service was acute only and there was no evidence of chronicity of care. This opinion does not offer a rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Moreover, these opinions appear to be based on an inaccurate factual premise, as the Veteran’s private treatment records reflect complaints of neck pain since 2007 and nerve pain since 2008. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). On remand, an adequate addendum opinion to determine the etiology of the Veteran’s claimed bilateral leg disorder and cervical spine disorder should be obtained. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, to specifically include Southside Rehabilitation and Sports Medicine, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her representative and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, return the Veteran’s claims file to the examiner who conducted the October 2020 VA examiner so an addendum opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new in-person examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to the following questions: (A) Is it at least as likely as not (50 percent or greater probability) that a current bilateral leg disorder had its onset in-service or is otherwise related to the Veteran's service? The examiner should specifically address the notations of knee and shin pain, metatarsophalangeal and proximal tibia stress reaction, right leg pain, hyperextended soft tissue injury, left knee patellofemoral pain syndrome, general history of strain and other related complaints in the Veteran’s service treatment records. (B) Is it at least as likely as not (50 percent or greater probability) that a current cervical spine disorder, to include cervical spine degenerative disc disease, spondylolisthesis, and intervertebral disc disease had its onset in-service or is otherwise related to the Veteran's service? Consideration should be given to the use of Kevlar vests, backpacks, or heavy gear, or any impingement, strain, or other injury from such use, therein. The examiner should specifically consider and discuss the possibility that such items were equipped either improperly or less than ideally, and the likely aggregate effect of such use throughout service. The examiner should also consider and discuss, as necessary, the significance of the Veteran's reported diagnosis and treatment for a pinched neck nerve shortly after discharge. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Should the Veteran be found to have a service-connected disability, another opinion from an appropriate examiner regarding her acquired psychiatric disorder should be obtained. The examiner should respond to the following question: (a.) Is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder has been caused or aggravated (worsened beyond its natural progression) by chronic pain associated with a service-connected disability? The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri, 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.