Citation Nr: 21009802 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 10-15 071 DATE: February 23, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy from January 11, 2012, is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy from January 11, 2012, is remanded. Entitlement to service connection for a chronic neck disability, to include as secondary to service-connected low back disability, is remanded. REASONS FOR REMAND The Veteran had active service from February 1984 to June 1984, and from December 2003 to March 2005. These issues come before the Board of Veterans’ Appeals (Board) on appeal from Rating Decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in January 2009 (lower extremity radiculopathy associated with degenerative joint disease of the thoracolumbar spine) and March 2010 (neck condition). The issues of entitlement to increased ratings for the Veteran’s radiculopathy of the right and left lower extremities have a long procedural history. The Veteran initially filed a claim of entitlement to an increased rating for degenerative disc disease of the thoracolumbar spine in November 2008, which was denied in a January 2009 Rating Decision. The Veteran’s lower extremity radiculopathy claims were part and parcel of this initial increased rating claim; a separate grant of entitlement to service connection for the radiculopathy of the left lower extremity was awarded in a September 2016 Rating Decision, while a separate grant of entitlement to service connection for radiculopathy of the right lower extremity was awarded in an August 2017 Rating Decision. In August 2017, the Board granted an increased rating of 40 percent for the service-connected DJD of the thoracolumbar spine, effective November 25, 2008. The Board also denied compensable ratings prior to January 11, 2012, for the service-connected left and right lower extremity radiculopathy and granted 10 percent ratings for the left and right lower extremity radiculopathy, for the period beginning January 11, 2012. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2018, the Court vacated the Board’s August 2017 decision as to the issues of entitlement to a rating in excess of 40 percent for the lumbar spine disability; entitlement to a compensable rating for left lower extremity radiculopathy prior to January 11, 2012, and a 10 percent rating thereafter; and entitlement to a compensable rating for right lower extremity radiculopathy prior to January 11, 2012, and a 10 percent rating thereafter, remanding those issues to the Board for further consideration, pursuant to a Joint Motion for Partial Remand (Joint Motion) dated in August 2018. In February 2019, the Board denied initial compensable ratings prior to January 11, 2012, for radiculopathy of the lower extremities and remanded the claim for an increased rating for the low back disorder for further development. In the February 2019 decision, the Board also found that the August 2018 Joint Motion had not disturbed the portion of the Board’s decision that granted 10 percent ratings for the left and right lower extremity radiculopathy beginning January 11, 2012. However, in a November 2019 Joint Motion, the parties found that the Board failed to substantially comply with the August 2018 Joint Motion because it did not adjudicate whether ratings in excess of 10 percent for right and left lower extremity radiculopathy were warranted from January 11, 2012, onward. Although no error was pointed out in the August 2018 Joint Motion with respect to the August 2017 Board decision on these matters, the Joint Motion still vacated and remanded this part of decision. Thus, the November 2019 Joint Motion found that the Board had not substantially complied with the prior August 2018 Joint Motion. Significantly, however, the November 2019 Joint Motion explicitly indicated that the Veteran agreed to abandon the issues of entitlement to a compensable rating for left lower extremity radiculopathy prior to January 11, 2012, and entitlement to a compensable rating for right lower extremity radiculopathy prior to January 11, 2012. As such, the issues remaining on appeal pertain to whether the Veteran is entitled to ratings for radiculopathy in excess of 10 percent from January 11, 2012, onward, as captioned above. With respect to the issue of entitlement to service connection for a chronic neck disability, this issue also has a long procedural history that has been outlined in prior Board decisions. Most recently, in a February 2018 decision, the Board denied the Veteran’s claim of entitlement to service connection for a chronic neck disability. The Veteran appealed this decision to the Court. While the matter was pending before the Court, the Veteran’s attorney and a representative of VA’s General Counsel filed another Joint Motion. In a February 2019 Order, the Court granted the motion, vacated the Board’s February 2018 decision with regard to this issue, and remanded the matter for readjudication. In a May 2020 decision, the Board denied the Veteran’s claim of entitlement to a rating in excess of 40 percent for degenerative joint disease of the thoracolumbar spine for the period beginning November 25, 2008. The May 2020 Board decision also remanded the claims of entitlement to service connection for a chronic neck disability as well as claims of entitlement to higher ratings for radiculopathy of the right and left lower extremities for additional development. These claims now return to the Board for adjudication. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, in a July 2012 Rating Decision, the RO granted entitlement to a TDIU effective July 31, 2010 (the day following the Veteran’s last day of employment). Entitlement to this TDIU benefit was terminated effective February 14, 2011, the date the Veteran’s posttraumatic stress disorder (PTSD) evaluation increased to 100 percent disabling, because VA regulation does not permit entitlement to a TDIU when a schedular 100 percent evaluation for a single disability is warranted. TDIU entitlement prior to July 31, 2010, has not been raised by the record. As such, a claim of entitlement to a TDIU is not within the Board’s jurisdiction. The Veteran seeks entitlement to service connection for a chronic neck disability as well as entitlement to higher ratings for radiculopathy of the right and left lower extremities. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to the Veteran’s claim of entitlement to service connection for a chronic neck disability, he has asserted that this disability was caused or aggravated by his other service-connected disabilities. The Veteran is currently service connected for posttraumatic stress disorder (PTSD) to include sleep impairment, degenerative joint disease of the thoracolumbar spine, tinnitus, right lower extremity radiculopathy associated with degenerative joint disease of the thoracolumbar spine, left lower extremity radiculopathy associated with degenerative joint disease of the thoracolumbar spine, right ear hearing loss, and erectile dysfunction. He has been diagnosed as having osteoarthritis of the cervical spine. In October 2017, a VA examiner opined that, “The service related condition of lumbar spine disability has not aggravated the condition of osteoarthritis of the cervical spine. Osteoarthritis is a degenerative condition that can develop from risk factors such as aging, stress, injuries or trauma, heredity, obesity, high mechanical stress, and repetitive use.” The Veteran’s most recent VA treatment records reflect that he is obese. In an October 2020 VA Peripheral Nerves Conditions examination, the Veteran reported that, “I struggle with weight because I can't exercise; it’s hard to walk. My back hurts all the time, it's hard to stand for long periods.” Most recently, in correspondence dated in December 2020, the Veteran’s attorney argued that the Veteran is entitled to service connection for his neck condition secondary to his service-connected disabilities because, as previous VA examiners had noted, obesity is a common causal risk factor for the development of osteoarthritis, and a VA examiner had not yet addressed the specific questions as to whether the Veteran’s service-connected PTSD and musculoskeletal conditions caused or aggravated his obesity, and whether obesity caused or aggravated his cervical spine osteoarthritis. While obesity is not a disability for VA compensation purposes, it can be an “intermediate step” between a current disability and a service-connected disability for purposes of secondary service connection if it is found that “(1) the service-connected disability caused the veteran to become obese; (2) the obesity was a substantial factor in causing the claimed secondary disability; and (3) the claimed secondary disability would not have occurred but for obesity caused by the service-connected disability.” Marcelino v. Shulkin, 29 Vet. App. 155 (2018); VAOPGCPREC 1-2017 (Jan. 6, 2017). In a more recent decision, the United the Court found that the proper interpretation of VAOPGCPREC 1-2017 required consideration of both proximate causation and aggravation in its analytical framework: (1) whether the service-connected disability caused or aggravated the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for the obesity caused or aggravated by the service-connected disability. Walsh v. Wilkie, No. 18-045 (Feb. 24, 2020). If these questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Id. Here, the previous VA opinions cited obesity as a risk factor for the development of osteoarthritis but did not provide an opinion as to the likelihood that the Veteran’s service-connected disabilities caused or aggravated the Veteran to become obese; and, if so, the likelihood that the obesity as a result of the service-connected disability was a substantial factor in causing the current neck disability. As such, additional VA opinions addressing these questions are necessary to satisfy VA’s duty to assist in the development of the Veteran’s claim. See 38 U.S.C. § 5103A. The Board’s May 2020 remand directed the RO to obtain an addendum opinion to determine the nature and etiology of the Veteran’s chronic neck disability. The examiner was directed to opine concerning direct service connection, as well as secondary service connection (causation and aggravation). In providing these opinions, the examiner was to address the Veteran’s lay testimony of lay testimony of pain radiating from his back to his neck, and whether the distance between the back and cervical spine increases the chances that the cervical spine disorder is due to the lumbar spine condition. The examiner was also directed to specifically address the publication submitted in February 2020 concerning a correlation between back and neck pain. The Board finds the addendum opinion obtained in November 2020 concerning the etiology of the Veteran’s neck disability inadequate. The examiner provided an opinion on secondary causation that briefly addressed the Veteran’s lay statement but not the publication submitted in February 2020. Moreover, the examiner did not provide an opinion on direct service connection or aggravation. Therefore, remand is also necessary to ensure compliance with the previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance). With respect to the claims of entitlement to higher ratings for radiculopathy of the right and left lower extremities, the Veteran has been afforded a multitude of VA Back (Thoracolumbar Spine) examinations during the course of this appeal. These examinations have included various tests relevant to the Veteran’s radiculopathy symptoms of the bilateral lower extremities, to include muscle strength testing, reflex examinations, sensory examinations, and straight leg raising tests. However, in its May 2020 Remand, the Board emphasized that the Veteran had never been provided with a specific nerve diagnostic examination at any point during the course of the appeal. As such, in light of the November 2019 Joint Motion, the Board directed that the Veteran be afforded a VA nerve diagnostic examination to determine the current severity of his service-connected radiculopathy. Pursuant to the Board’s Remand instructions, the Veteran was afforded a VA Peripheral Nerves Condition examination in October 2020. Significantly, however, this examination report indicated that no electromyography (EMG) studies were conducted, and that there were no other significant diagnostic test findings and/or results. Rather, the examination report merely employed the same muscle strength testing, reflex examinations, and sensory examinations that had been administered in previous VA Back (Thoracolumbar Spine) examinations throughout the rating period on appeal. The October 2020 VA Peripheral Nerves Condition examination actually provided less detail than the previous VA examinations. Whereas the November 2019 VA Back (Thoracolumbar Spine) Conditions examination indicated that the Veteran’s service-connected radiculopathy was manifested by numbness of the bilateral lower extremities which involved the sciatic nerves, the October 2020 VA Peripheral Nerves Condition examination provided no findings regarding involvement of the sciatic nerves. As the May 2020 Board Remand requested that the Veteran be provided with more specialized diagnostic testing to evaluate the current severity of his service-connected radiculopathy of the bilateral lower extremities, remand is necessary to ensure compliance with the previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a medical professional with appropriate expertise regarding the etiology of the Veteran’s diagnosed osteoarthritis of the cervical spine. The examiner should review the Veteran’s claims file and note in the examination report that the claims file was reviewed. If the examiner determines that an opinion cannot be provided without an examination, then the Veteran should be scheduled for one (or telehealth interview, if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address: a. whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s osteoarthritis of the cervical spine (or any other diagnosed neck disorder) is attributable to active service. b. whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s osteoarthritis of the cervical spine (or any other diagnosed neck disorder) was caused or aggravated by service-connected degenerative joint disease of the thoracolumbar spine. In this regard, the examiner should specifically address the Veteran’s lay testimony of pain radiating from his back to his neck, and whether the distance between the back and cervical spine increases the chances that he cervical spine disorder is due to the lumbar spine condition. The examiner must also specifically address the publication submitted in February 2020 concerning a correlation between back and neck pain. c. whether it is at least as likely as not (50 percent probability or greater) that any of the Veteran’s service-connected disabilities (alone or in the aggregate) caused or aggravated the Veteran to become obese. The examiner must render opinions on both causation and aggravation. In providing this opinion, the examiner is asked to specifically acknowledge the recent VA treatment records reflecting that the Veteran is obese, as well as the October 2020 VA Peripheral Nerves Conditions examination report in which the Veteran indicated that, “I struggle with weight because I can't exercise; it’s hard to walk. My back hurts all the time, it's hard to stand for long periods.” If the examiner answers the above in the affirmative, then the examiner is further asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s obesity was a substantial factor in causing his osteoarthritis of the cervical spine. In providing this opinion, the VA examiner is asked to specifically acknowledge the October 2017 VA opinion which indicated that, “Osteoarthritis is a degenerative condition that can develop from risk factors such as aging, stress, injuries or trauma, heredity, obesity, high mechanical stress, and repetitive use.” If the examiner answers the above in the affirmative, then the examiner is further asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s osteoarthritis of the cervical spine would not have occurred but for obesity caused by the Veteran’s service-connected disabilities. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. “Aggravation” means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. In rendering this opinion, the examiner 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 medical professional rejects the Veteran’s reports, then he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, then he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall 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(s). The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., that he or she relied on in reaching his conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Afford the Veteran an appropriate VA examination to determine the current severity of his service-connected radiculopathy of the right lower extremity and left lower extremity. The record, to include a complete copy of this remand, must be made available to the examiner. The examiner should conduct all indicated tests, to include electromyography (EMG) / nerve conduction velocity (NCV) testing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, then he or she should clearly explain why that is so. The examiner should identify the current nature and severity of all manifestations of the Veteran’s bilateral lower extremity radiculopathy. If it is determined that radiculopathy is present, then the examiner is asked to identify the affected nerve root(s) and indicate the severity of the condition. In this regard, the November 2019 VA examination report indicated that the Veteran’s sciatic nerve was affected, whereas the most recent October 2020 VA examination report did not provide any information regarding the sciatic nerve. If no involvement of the sciatic nerve is detected upon current examination, then the examiner is asked to discuss whether the previous indications of sciatic nerve involvement were misdiagnoses or rather appropriate diagnoses which have since resolved. A rationale for any opinion offered should be provided. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.