Citation Nr: 21008117 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-00 072A DATE: February 11, 2021 REMANDED Entitlement to service connection for a back condition, claimed as spinal arthritis, is remanded. Entitlement to service connection for lumbar radiculopathy, claimed as numbness and stiffness in both legs, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1978 to August 1981. This appeal arises from an April 2014 rating decision of the VA Regional Office (RO), which denied service connection for a back condition and lumbar radiculopathy. The Veteran appealed the decision to the Board of Veterans’ Appeals (Board), and in November 2018, the Board denied, inter alia, service connection for a back condition and lumbar radiculopathy. The Veteran appealed the Board’s November 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2019 Order, the Court granted the parties’ August 2019 Joint Motion for Partial Remand (JMPR) to vacate and remand the Board’s decision concerning the back and lumbar radiculopathy issues. The appeal of these two issues returned to the Board, and in December 2019, the Board remanded the issues for additional development in accordance with the August 2019 JMPR. The appeal is now again before the Board. 1. Entitlement to service connection for a back condition, claimed as spinal arthritis, is remanded. 2. Entitlement to service connection for lumbar radiculopathy, claimed as numbness and stiffness in both legs, is remanded. At the outset, the Board notes that, subsequent to a December 2014 Statement of the Case including the back and lumbar radiculopathy issues, the Veteran requested a Board hearing on a VA Form 9 received in January 2015. The Veteran was scheduled for a September 2015 Travel Board hearing, but he requested rescheduling of such hearing. See September 9, 2015, Report of General Information. Since that time, the Veteran’s representative has submitted multiple statements that were silent as to a Board hearing for the back and lumbar radiculopathy issues; it does not appear from the record that the Board hearing request was withdrawn. While on remand, the Veteran will have the opportunity to clarify whether he still desires a Board hearing for these two issues. See Cook v. Wilkie, 908 F.3d 813 (Fed. Cir. 2018) (noting that 38 U.S.C. § 7107(b) supports that the Board must provide a claimant an opportunity for a hearing before it decides every appeal, including after remand from the Court). In a February 2021 brief, the Veteran’s representative contends that further remand is required for compliance with the remand directives of the Court and the Board. Specifically, the brief asserts that the following treatment records are not currently associated with the claims file even though they were specifically listed in the Court-granted August 2019 JMPR and the Board’s December 2019 remand: April 23, 2013, and July 25, 2013, Neurology Consults. Additionally, the representative argues that the record does not include Federal Records, Joint Legacy View (JLV) received August 28, 2020, yet the RO listed them as evidence in a recently issued August 2020 Supplemental Statement of the Case (SSOC). While it appears that updated VA treatment records have recently been associated with the Veteran’s claims file as noted in the August 2020 SSOC, neither the noted VistA neurology consult records nor Federal Records JLV appear to be currently associated with the claims file. Therefore, the Board finds that, on remand, reasonable efforts should be made to obtain such records for substantial compliance with the August 2019 JMPR and December 2019 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Furthermore, regarding the back and lumbar radiculopathy issues, the Board noted in its November 2018 decision that “the Veteran clearly has current disabilities.” See, e.g., December 20, 2012, VA Treatment Record showing lower back pain that shoots down legs; April 9, 2013, VA Treatment Record noting chronic back pain and neuropathy pain; and November 18, 2019, VA Treatment Record listing low back pain and peripheral nerve disease as active problems. As mentioned in the Board’s November 2018 decision, the Veteran contends that his back pain began hurting while in the Army and hurt during running and other exercises. See e.g., May 2014 Notice of Disagreement. Additionally, within the August 2019 JMPR, the parties noted that the Veteran asserted at an October 2014 Decision Review Officer hearing that going to sick call was frowned upon. The parties agreed that remand was “warranted for the Board to consider this evidence as a possible explanation as to why service records do not reflect in-service back treatment.” As no VA examiner has opined as to whether the Veteran’s current back condition or lumbar radiculopathy had an onset in service or is otherwise related to service, to include consideration of the Veteran’s contentions, remand is warranted to obtain a VA examination with a medical opinion. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). The matters are REMANDED for the following action: 1. Clarify if the Veteran desires a Board hearing for the back condition and lumbar radiculopathy issues. 2. Make reasonable efforts to ensure the record is complete, to include any VistA scanned records denoted in the CAPRI records but not actually found in the claims file, to include April 23, 2013, and July 25, 2013, Neurology Consults, and the Federal Records, Joint Legacy View (JLV) received August 28, 2020, listed as evidence in the August 2020 SSOC. 3. Ask an appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether the Veteran has a current diagnosis related to the back, to include consideration of chronic back pain and nerve symptoms noted in the records, and if so, whether it is at least as likely as not (a 50 percent or greater probability) that any such diagnosis: (a) had an onset in service or (b) is otherwise related to service, to include consideration of Veteran’s contention that his back started hurting during his active service in the Army while running and/or performing other exercises. The examiner should consider all medical and lay evidence of record and provide complete rationale for any conclusions made. (Continued on the next page)   4. After the above development and any other development deemed necessary is completed, readjudicate the claims; then give the Veteran and his representative the opportunity to respond. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Santiago, 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.