Citation Nr: 21008915 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-26 601 DATE: February 18, 2021 REMANDED Entitlement to service connection for arthritis of the low back as secondary to service-connected low back strain is remanded. Entitlement to service connection for sciatica of the right lower extremity, to include as secondary to service-connected low back strain is remanded. REASONS FOR REMAND The Veteran had active service in the Army from April 1992 to July 1992. She also had subsequent service with the United States Army Reserves. The Board notes that the rating decisions on appeal were issued in January 2016 and April 2016. In a July 2019 decision, the Board declined to grant entitlement to service connection for arthritis of the low back, to include as secondary to service-connected low back strain; sciatica of the left lower extremity, to include as secondary to service-connected low back strain; and sciatica of the right lower extremity, to include as secondary to service-connected low back strain. In August 2020, the United States Court of Appeals for Veterans Claims (CAVC) granted a Joint Motion for Partial Remand (JMR) that vacated and remanded the portion of the July 2019 decision that denied entitlement to service to service connection for arthritis of the low back as secondary to service-connected low back strain and entitlement to service connection for sciatica of the right lower extremity, to include as secondary to service-connected low back strain. Also, the August 2020 JMR dismissed the appeals of the denial to entitlement to service connection for sciatica of the left lower extremity, as well as entitlement to service connection for arthritis to the low back based on a theory that this disability is directly due to service. The Board must now remand the issues to the Agency of Original Jurisdiction (AOJ) to ensure compliance with the August 2020 JMR. 1. Entitlement to service connection for arthritis of the low back as secondary to service-connected low back strain is remanded. 2. Entitlement to service connection for sciatica of the right lower extremity, to include as secondary to service-connected low back strain is remanded. As determined by the August 2020 JMR, partial vacatur and remand of the decision on appeal are warranted because the Board erred in finding VA satisfied its duty to assist, specifically its duty to obtain an adequate medical opinion. The August 2020 JMR determined that the Board erred when in directed the VA examiner to state whether Appellant’s service-connected low back strain has “aggravated (i.e., permanently worsened beyond the normal progression of that disease) any arthritis of the low back. . ..” A subsequent negative nexus opinion was provided in the April 2019 VA examination. However, permanent aggravation is not required. See Ward v. Wilkie, 31 Vet. App. 233, 238 (2019) (citing Allen v. Brown, 7 Vet. App. 439, 448 (1995)). Accordingly, a remand is necessary to ensure that VA obtains an examination or medical opinion that adequately discusses the Veteran’s lay statements and addresses whether any diagnosed arthritis of the low back is proximately due to, or aggravated by, a service-connected disability. Finally, the August 2020 JMR determined, as the April 2019 examiner noted radiographic evidence of sciatic symptoms of Veteran’s right leg due to the mild to moderate right neural torminal stenosis at LS-S1, that the resolution of the above issue could potentially impact the Veteran’s claim for entitlement to service connection for sciatica of the right lower extremity. Thus, the claim for entitlement to service connection for sciatica of the right lower extremity should be remanded as inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)). The matters are REMANDED for the following action: 1. Associate with the claims folder updated VA treatment records. 2. Schedule the Veteran for a VA examination by an appropriate medical professional with respect to the claim for arthritis of the lower back on a secondary basis. The examiner should determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s arthritis of the low back is either caused by her service-connected low back strain; OR Is it at least as likely as not (50 percent probability or greater) that a service-connected low back strain results in any additional functional impairment associated with her arthritis of the low back (e.g., a medically discernible increase in frequency, duration and/or severity, even if temporary, above the degree associated with that expected from her baseline arthritis of the low back alone). The examiner is requested to discuss whether the underlying service-connected disorder low back strain is medically capable of causing or aggravating arthritis of the low back and, if so, whether the Veteran’s arthritis of the low back has been caused or aggravated based on the particular facts of the case. After completing the development above and after completing any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue of entitlement to service connection for sciatica of the right lower extremity, to include as secondary to service-connected low back strain should be readjudicated based on the entirety of the evidence. 3. 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. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, 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.