Citation Nr: 21012905 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-11 866 DATE: March 5, 2021 ORDER Entitlement to service connection for a bilateral lower extremity neurological disability, to include lumbar radiculopathy, (claimed as neuropathy), as secondary to service-connected chronic lumbar strain, is granted. REMANDED Entitlement to service connection for a neck or cervical spine disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Bilateral lower extremity lumbar radiculopathy (claimed as neuropathy) is shown to be associated with service-connected chronic lumbar strain. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a bilateral lower extremity neurological disability, to include lumbar radiculopathy, (claimed as neuropathy), as secondary to service-connected chronic lumbar strain, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Army from April 1998 to December 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. In January 2020, the Board most recently remanded the instant issues on appeal for further development. The issues have returned to the Board. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, 38 U.S.C. § 1154(a) requires that VA give ‘due consideration’ to ‘all pertinent medical and lay evidence’ in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, ‘[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.’ Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a bilateral lower extremity neurological disability, to include lumbar radiculopathy, (claimed as neuropathy), as secondary to service-connected chronic lumbar strain, is granted. The Veteran asserts that he has a bilateral lower extremity neurological disability due to his service-connected chronic lumbar strain. He experiences symptoms of shooting pain, numbness, and tingling that runs from his lower back through his legs and into his toes. The symptoms become worse when standing or walking. The Veteran is service connected for chronic lumbar strain. On VA back examination in August 2009, the Veteran reported having decreased sensation on the anterior thighs bilaterally. He further reported that his toes went numb intermittently. On VA back examination in February 2011, the Veteran reported that he had radiating pain down his legs, as well as numbness and weakness in the legs. On VA peripheral nerves conditions examination in February 2011, the examiner noted bilateral lower extremity neuropathy, secondary to the Veteran’s lumbar strain. The examiner noted the date of onset as 1999. The Veteran reported that he had numbness of the toes and feet and indicated that this symptom had been present for years. He also reported burning of the legs with standing and walking. He indicated that his legs gave way, and that he stumbled and experienced loss of balance. The examiner provided a diagnosis of lumbar radiculopathy and opined that such was at least as likely as not related to the Veteran’s lumbar strain. On VA back examination in February 2019, the Veteran reported burning pain in both legs and numbness of toes in both feet. At the more recent VA peripheral nerves conditions examination in February 2019, the examiner provided a diagnosis of meralgia paresthetica. The Veteran continued to report numbness in both anterior thighs, burning pain in legs, and numbness of toes. Here, the evidence of record shows that the Veteran consistently complained of pain in his bilateral lower extremities and has sought medical treatment for it. Furthermore, the February 2011 VA examiner opined that the Veteran’s lumbar radiculopathy was at least as likely as not related to his lumbar strain. As such, the Board is satisfied that the symptomatology the Veteran experiences in his bilateral lower extremities is the result of his service-connected chronic lumbar strain. Thus, based on the above, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for a bilateral lower extremity neurological disability, to include lumbar radiculopathy, (claimed as neuropathy) is warranted. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a neck or cervical spine disability is remanded. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the January 2020 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain a VA addendum opinion addressing the nature and etiology of the claimed neck disability. The examiner was directed to address the August 2009 VA examination in which the Veteran was diagnosed with residuals of cervical strain. The Board instructed that regardless of whether the examiner agrees with the August 2009 diagnosis, the examiner should opine as to whether the Veteran’s neck pain is causally related to this service-connected back disability and the level of functional impairment resulting from the pain. In September 2019, the Veteran was afforded a VA examination for his claimed neck disability. The examiner noted that the Veteran has never been diagnosed with a neck condition. The examiner indicated that there is no record of a neck injury or neck problems during military service or at the time of separation. The examiner further indicated that there are no reports of neck problems during primary care or urgent care exams from 2002 to 2005. Additionally, X-rays of the neck were negative for posttraumatic changes in 2019. The examiner opined that it is less likely than not that the Veteran developed neck problems related to service. The examiner also opined that it is less likely than not that the Veteran developed chronic neck problems secondary to his service-connected back disability, or that the Veteran has a chronic neck disability aggravated beyond the natural progression by his service-connected back disability. The Board finds the opinions to be inadequate, as the examiner failed to address the August 2009 diagnosis of residuals of cervical strain. In light of the above, to ensure compliance with the January 2020 remand directives, a remand is required for a new VA opinion of the claimed neck disability. See Stegall, 11 Vet. App. at 271. 2. Entitlement to a TDIU is remanded. As the Board has granted service connection for a bilateral lower extremity neurological disability in this decision, the TDIU claim must be remanded for adjudication in light of the grant of service connection. Furthermore, the Board also finds that this issue is inextricably intertwined with the resolution of the remanded issue. Accordingly, a remand of the TDIU claim is required. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, return the claims file to the examiner who performed the September 2019 VA examination for the neck. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the September 2019 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The examiner must provide an opinion as to whether any diagnosed neck condition is at least as likely as not related to an in-service injury, event, or disease. The examiner must address all diagnosed neck conditions during the claims period. The examiner should specifically note the diagnosis of residuals of cervical strain in August 2009. Whether the examiner agrees with the August 2009 diagnosis or not, the examiner should opine whether the Veteran’s neck pain is causally related to his service-connected back disability and the level of functional impairment resulting from the pain. In consideration of all of the Veteran’s statements and reports and all pertinent medical records, the examiner is also asked to offer an opinion as to whether it is at least as likely as not that the Veteran’s neck condition was either caused or aggravated beyond the natural progression by the Veteran’s service-connected back disability. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (CONTINUED ON NEXT PAGE) 3. After completing all indicated development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, Associate 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.