Citation Nr: 21012376 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-31 285A DATE: March 4, 2021 REMANDED Service connection for a lumbar spine disorder is remanded. Service connection for right lower extremity radiculopathy disorder as secondary to the lumbar spine disorder is remanded. An increased evaluation rating in excess of 40 percent for service-connected neuritis of the right upper extremity disorder is remanded. A compensable evaluation for service-connected residual scarring of the right hand resulting from infection is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from June 1976 to July 1979. The matters are on appeal from September 2009, May 2012, and January 2013 rating decisions. A July 2014 rating decision increased the evaluation for neuritis pain disorder (regional sympathetic dystrophy) affecting the right upper extremity from 20 percent to 40 percent, effective date of September 3, 2008. As the increase did not constitute a full grant of the benefit sought, the Veteran's claim for a higher initial evaluation remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In December 2016, the Veteran raised an informal claim for TDIU due to his service-connected disabilities; however, TDIU is always part and parcel of an increased rating claim when unemployability is raised by the Veteran or the evidence. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issues are as noted on the title page. In his September 2014 substantive appeal, the Veteran requested a hearing before the Board at a local VA office. In a March 2015 written response to a choice of hearing, the Veteran requested adjudication of his claim without a hearing. As such, the hearing request is deemed withdrawn and the Board may proceed to adjudicate these claims. See 38 C.F.R. § 20.704(e) (2019). The case was remanded in July 2018 for additional development. 1. Service connection for a lumbar spine disorder. A December 2008 VA outpatient treatment record notes the Veteran sought treatment for low back pain. The examiner diagnosed lumbar spine radiculopathy. The examiner opined that 80 percent of the Veteran’s low back pain was the result of his work-related injury and 20 percent was due to his military service. The examiner did not provide any rationale for this conclusion. The report of an October 2010 VA examination notes the Veteran’s report of recurrent back pain since an in-service injury caused by basketball and boxing. The examiner diagnosed lumbar spine degenerative disc disease. Upon review of the record, the examiner noted that the Veteran was treated for low back pain during and after separation from service. The examiner opined that the Veteran’s current degenerative disc disease was not related to his active service. The examiner did not provide any rationale for this conclusion. The report of an August 2012 VA examination includes a diagnosis of radiculopathy of the right lower extremity. The examiner found the current right lower extremity radiculopathy “less likely” due to active service. In providing the opinion, the examiner noted that the Veteran had work-related back injuries following his in-service low back injury. The examiner concluded that the cause of the Veteran’s back pain was likely due to his post-service work injury. The examiner’s rationale is inadequate because he failed to explain why post-service back injuries, as opposed to the in-service injuries, were more likely the cause of the Veteran’s current disability. Furthermore, while the examiner acknowledged generally that "in youth many sports will result in temporary lumbar discomfort with it progressing to lumbar pathology," no explanation was given as to why the Veteran's sports injury to his back during service at a young age did not follow the latter general principle. A March 2013 private treatment record from Dr. V. T. indicated that it was "very plausible" that the Veteran's current low back disability dates from service. He further stated that, if records show that the Veteran continued to complain of back symptoms following service, "then indeed this has some certain percentages of culpability for his back problem in general." The Board finds the medical opinion too speculative and inconclusive to provide the degree of certainty required for medical nexus evidence. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Veteran underwent a VA examination in January 2020. In a September 2020 opinion, the examiner found the Veteran's low back disability was “less likely” incurred in or caused by military service, to include the in-service basketball injury. In providing the opinion, the examiner noted that it was not until 2003, when the Veteran sustained a low back injury while working, and shortly thereafter, radicular symptoms. The examiner further noted that prior to the Veteran’s 2003 work injury, the record notes that the Veteran was fit and could lift 100 pounds without symptoms of low back pain. In this regard, the Board notes that the record in fact, does not indicate that the Veteran was fit and could lift 10 pounds without symptoms of low back pain prior to his post-service work injury. Significantly, the record includes a May 2006 private treatment record, that notes that prior to his February 2003 injury, the Veteran was “presumably strong and could lift 100 pounds and without low back symptoms.” The Board finds the September 2020 VA opinion inadequate to adjudicate the claim, as the examiner’s conclusion is based on an inaccurate review of the record. Accordingly, another medical opinion is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for right lower extremity radiculopathy disorder as secondary to the lumbar spine disorder. The Veteran seeks service connection for pain and numbness of his right leg as secondary to his lumbar spine disability. Therefore, the issue of entitlement to service connection for right lower extremity radiculopathy associated with the lumbar spine disorder is remanded, as it is inextricably intertwined with the lumbar spine claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to an evaluation rating in excess of 40 percent for service-connected neuritis of the right upper extremity disorder. See argument below at 4 4. Entitlement to a compensable evaluation for residual scarring of the right hand resulting from infection. A November 2012 VA peripheral nerve examination includes the examiner’s finding of incomplete paralysis of the musculocutaneous nerve. The examiner, however, failed to indicate the severity of the incomplete paralysis; specifically, whether it was mild, moderate, or severe. A September 2019 VA peripheral nerve examination notes the Veteran’s report of severe right upper extremity symptoms; however, the examiner failed to specify the affected nerves. Likewise, in September 2020, the Veteran underwent a VA examination, and the examiner again failed to indicate the severity of the musculocutaneous nerve. This medical finding is necessary in order to properly rate the service-connected neuritis disability pursuant to Diagnostic Code 8613, or to determine whether a diagnostic code other than Diagnostic Code 8613 may afford the Veteran a higher disability rating for his service-connected right upper extremity neuritis disability. See 38 C.F.R. § 4.124a, Diagnostic Code 8613. If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2019). Accordingly, the case is remanded for another VA examination to determine the current severity of the Veteran’s right upper extremity neuritis disability, including neurologically manifestations, and the inextricably intertwined aspect of associated scars. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 5. Entitlement to a TDIU due to service-connected disabilities. Finally, since the Veteran’s claims for service connection and increased ratings, rely in part on his disability ratings, these issue of entitlement to a TDIU cannot be addressed until the above development has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely ties together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. All pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. If deemed appropriate at this time, the examination may be conducted virtually. Following the review of the record, the physician should state a medical opinion with respect to lumbar spine disorder present during the period of the claim, as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the lumbar spine disorder manifested during, or as a result of, active military service. In providing the opinion, the examiner must discuss the service treatment record dated in November 1978 that shows the Veteran sought treatment for a back injury, as he was hurt playing basketball; the assessment was a possible low back muscle strain. The examiner must discuss the post-service private treatment records that document a work-related injury in February 2003, that resulted in several surgeries. The examiner must also discuss the Veteran’s ongoing assertions of lumbar spine pain since his in-service injury, to include his assertion of ongoing treatment at multiple VA and private facilities since the initial in-service injury. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Afford the Veteran a VA examination by an examiner with sufficient expertise to determine the current severity of his service-connected right upper extremity neuritis disability. The electronic records should be made available to and reviewed by the examiner. All necessary tests and studies should be performed. The AOJ should ensure that the examiner provides all information required for rating purposes, to specifically include any neurological manifestations, as well as the Veteran’s right-hand scar. The examiner must indicate whether there is complete or incomplete paralysis of the affected nerves. If the examiner finds that there is incomplete paralysis, he/she must also indicate the severity of the incomplete paralysis; specifically, whether it was mild, moderate, or severe. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Furthermore, if any opinion cannot be offered without resorting to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. [CONTINUED ON NEXT PAGE] 4. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a Supplemental Statement of the Case and an appropriate period for response before the case is returned to the Board for further appellate action. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Schinnerer, 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.