Citation Nr: 21006790 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-07 800 DATE: February 5, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1960 to April 1964. In April 2018, the Board remanded the Veteran’s claims for service connection for a low back disability, a right leg disability, a left leg disability, and TDIU for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has not been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As explained below, the Board finds that another remand is necessary in order to provide the Veteran with adequate examinations and/or opinions. 1. Low Back Disability In the April 2018 remand, the Board requested a direct service connection opinion regarding the Veteran’s back disability as it relates to his time on active duty. At the time of the April 2018 remand, the record only contained a March 2012 secondary service connection opinion. To date, there has not been an adequate direct service connection opinion obtained. A November 2020 VA examiner tangentially responded to the Board’s request for a direct service connection opinion, stating: “A review of the Veteran’s records do not show a condition of the lumbar spine during service for a direct connection. Reviewing the Veteran’s medical records there are no medical records to show that there were any conditions which would have led to a secondary lumbar condition. The Veteran’s medical records do not show a preexisting lumbar condition which could have been aggrevated [sic] during time in service.” See November 2020 VA medical opinion. Preliminarily, this opinion assumes the Veteran had a preexisting back condition, which he did not. The Board finds that this misstatement is not only erroneous, but also does not adequately respond to the question posed within the April 2018 remand directives. As the examiner did not properly follow the Board’s directives regarding the question of direct service connection, the Board finds that there has not been substantial compliance with the prior directives and remand is necessary in order to obtain a new opinion regarding the etiology of the Veteran’s low back disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Right and Left Leg Disabilities Since the April 2018 remand, the Veteran has been service connected for a psychiatric disability. See July 2020 rating decision. The Veteran now contends that his right and left leg disabilities, namely bilateral lower extremity neuropathy, are due to his alcohol disorder. The Veteran relates said alcohol abuse to his now service-connected psychiatric disability. See December 2020 Veteran Statement. A March 2012 VA examiner related the Veteran’s bilateral lower extremity neuropathy to his chronic alcohol consumption. See March 2012 VA medical opinion. The question remains whether the Veteran’s alcohol consumption is related to his now service-connected psychiatric disability. As such, remand is warranted in order to obtain and opinion to address this contention. 3. TDIU Because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his low back and bilateral leg disabilities that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After completing directive #1 above, obtain an opinion from an appropriately qualified VA clinician to determine the nature and etiology of the Veteran’s low back disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. The opinions must include a notation that this record review took place. It is up to the discretion of the reviewing clinician whether a physical examination of the Veteran is needed to answer the questions below. The reviewing clinician should answer the following: (a.) Is it at least as likely as not that the Veteran’s low back disability was incurred in, or is otherwise related, to his time on active service? (b.) Is it at least as likely as not that the Veteran’s low back disability was caused OR aggravated by his service-connected neck disability? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing directive #1 above, obtain an opinion from an appropriately qualified VA clinician to determine the nature and etiology of the Veteran’s alcohol abuse disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. The opinions must include a notation that this record review took place. It is up to the discretion of the reviewing clinician whether a physical examination of the Veteran is needed to answer the questions below. The reviewing clinician should answer the following: (a.) Is it at least as likely as not that the Veteran’s alcohol abuse disorder was caused OR aggravated by his service-connected psychiatric disability? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing directives #1-3 above to the extent possible, readjudicate the claims, including the intertwined issue of TDIU. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.