Citation Nr: 21008734 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-30 795 DATE: February 17, 2021 REMANDED Entitlement to service connection for a neurological disorder of the left leg, to include as secondary to degenerative arthritis of the spine with extruded and bulging disc and lower right extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served in the U.S. Army Reserves from June 1978 to March 2017, with active duty from January 2004 to July 2005 and from July 2010 to August 2010. In addition, the Veteran completed periods of active duty for training (ACDUTRA) from June 1978 to April 2010. This matter comes before the Board of Veterans’ Appeals (Board) as the result of a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In his August 2015 VA Form 9, the Veteran requested a travel Board hearing before a Veterans Law Judge. See August 2015 VA Form 9, Substantive Appeal. In an October 2015 VA Form 21-4138, the Veteran withdrew his request for a hearing “to avoid an undue delay in the adjudicative process.” See October 2015 VA Form 21-4138, Statement in Support of Claim. Additional evidence was added to the record by VA after the October 2020 Supplemental Statement of the Case was issued. A waiver of Agency of Original Jurisdiction (AOJ) consideration of the October 2020 evidence is presumed. Since the Veteran’s Form 9, Substantive Appeal, was received after February 2, 2013, a formal waiver of review by the AOJ is not required. See § 501, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or the claimant’s representative requests in writing that the AOJ initially review such evidence). The issues of service connection for a low back disorder and a neurological disorder of the right leg, determined to be inextricably intertwined with the issue of a neurological disorder of the left leg, were remanded in August 2018 for further development. See August 2018 Board remand. All other issues before the Board have been adjudicated, and the single issue of entitlement to service connection for a neurological disorder of the left leg remains. The matter is returned to the Board for further action. This case has been advanced on the docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). 1. Entitlement to service connection for a neurological disorder of the left leg. Although the Board sincerely regrets the additional delay, another remand is necessary to ensure that due process is afforded, there is a complete record upon which to decide the Veteran’s claim, and that the Veteran is provided every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board cannot make a fully-informed decision on the issue of service connection, because no VA examiner has opined whether the Veteran’s left leg neurological condition is related to his active service, which document pain in the lower back and numbness in the right leg. The Veteran has been diagnosed with degenerative arthritis of the spine with extruded and bulging disc and lower right extremity radiculopathy. See September 2020 VA examination report. In order to trigger VA’s duty to assist in providing a medical examination under section 5103A(d)(2)B, the evidence of record need only indicate that symptoms of a disability, as opposed to a disability itself, may be associated with his active service. Duenas v. Principi, 18 Vet. App. 512 (2004). This is a low threshold that only requires some causal connection between the disability and military service, Wells v. Principi, 326 F.3d 1381 (2003). When a nexus between a current disability and an in-service event is indicated, there must be a medical opinion that provides some non-speculative determination as to the degree of likelihood that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus. Goss v. Brown, 9 Vet. App. 109 (1996). The Board finds that a remand is necessary to afford the Veteran a comprehensive VA examination to determine whether his left leg neurological condition is related to his military service. Here, the request opinion related to the left leg neurological disorder was not provided. The matter is REMANDED for the following actions: 1. Obtain VAMC records from October 2020 to present. 2. Once the updated treatment records are obtained, complete an addendum opinion from the VA provider who issued the September 2020 medical opinion (or a suitable replacement, if s/he is not available). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran’s record, to include a copy of this remand, should be made available to and reviewed by the examiner, consider the Veteran’s lay statements and reports about the symptoms he experiences in his left leg and foot, and an opinion as follows is requested: (a) Determine the nature of any neurological disorder of the left leg, to include radiculopathy. The examiner must opine whether any current neurological condition of the left leg is at least as likely as not related to an in-service injury, event, or disease, including complaints of low back pain and numbness in the right leg. (b) Next, if the examiner finds that the Veteran’s neurological condition of the left leg is not the result of or related to military service, the examiner must opine whether his neurological condition of the left leg is at least as likely as not caused by, or aggravated (i.e., worsened) by the Veteran’s service-connected disabilities, to include degenerative arthritis of the spine with extruded and bulging disc and lower right extremity radiculopathy, or the medications taken for these disorders. Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examiner is reminded that he or she must address both causation and aggravation. 3. The examiner must consider the service and private treatment records concerning the Veteran’s history of low back pain and radiculopathy-related issues. 4. The examiner should comment on the questions above and set forth the complete rationale, including generally accepted medical opinion, applicable studies and literature, and data from the evidence of record for all conclusions in the opinion addendum. 5. After the above development is completed, along with any additionally indicated development, readjudicate the issue on appeal. If the benefits sought are not granted to the satisfaction of the Veteran, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.