Citation Nr: 21013098 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-09 286 DATE: March 8, 2021 REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for a breathing condition is remanded. Entitlement to service connection for a right leg condition (now claimed as radiculopathy) due to a back condition is remanded. Entitlement to service connection for a left leg condition (now claimed as radiculopathy) due to a back condition is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from June 1977 to May 1997. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, 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 February 2020, the Board denied the issues on appeal. The Veteran appealed the Board’s February 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (JMR) and requested that the Court vacate the Board’s decision that denied all of the instant issues, and to remand the matter for further development. In an October 2020 Order, the Court vacated the Board’s February 2020 decision, and remanded the matter for further consideration and instructions consistent with the JMR. 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 back condition is remanded. See Argument Below 2. Entitlement to service connection for a neck condition is remanded. See Argument Below 3. Entitlement to service connection for a breathing condition is remanded. The Veteran contends entitlement to service connection for a neck condition, back condition, and a breathing condition. The record reflects that the Veteran was afforded a VA examination for each claimed disability in January 2017. The examiner provided a negative nexus opinion for each claimed disability. For the back condition, the examiner indicated that X-rays of the Veteran’s back are normal, and therefore, she did not have any objective findings to indicate that the Veteran’s current back condition is due to military service. Similarly, for the neck condition, the examiner stated that there is no objective evidence from the examination to indicate that the Veteran has a current neck condition caused by military service. As for the Veteran’s breathing condition, the examiner concluded that there is no evidence of pleural plaques or signs of asbestosis on X-ray. As previously indicated, pursuant to the September 2020 JMR, the Court vacated the Board’s February 2020 decision which denied entitlement to all of the issues on appeal. The Court found that the January 2017 VA examiner’s opinions as to the claimed back, neck, and breathing conditions were inadequate because “the examiner’s negative nexus opinions are not supported by a well-reasoned medical rationale.” The Court continued by stating, “The examiner simply stated, without further explanation, that objective findings do not support a finding that the conditions are at least as likely as not due to service.” Thus, in light of the Court’s directives, the Board finds that a remand is necessary to afford the Veteran with a new VA examination to obtain clarification as to the etiology of any back, neck, and breathing condition. 4. Entitlement to service connection for a right leg condition (now claimed as radiculopathy) due to a back condition is remanded. See Argument Below 5. Entitlement to service connection for a left leg condition (now claimed as radiculopathy) due to a back condition is remanded. The Veteran asserts that his claimed radiculopathy of the bilateral lower extremities is secondary to his back condition. Therefore, the claims of entitlement to service connection for right lower extremity and left lower extremity radiculopathy are inextricably intertwined with the claim of entitlement to service connection for a back condition. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). On remand, the Agency of Original Jurisdiction (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 completing the above development, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed back disorder. The Veteran’s claim 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 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. For any diagnosed back disability, the examiner must offer an opinion as to whether it is at least as likely as not that it manifested during, or as a result of active military service. Additionally, the examiner must offer an opinion as to whether it is at least as likely as not that the Veteran’s bilateral lower extremity radiculopathy manifested during, or as a result of active military service. If the examiner opines that the Veteran’s back disability is related to service, the examiner must also opine as to whether the Veteran’s back disability caused or aggravated his bilateral lower extremity radiculopathy. 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. 3. Then, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed neck disorder. The Veteran’s claim 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 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. For any diagnosed neck disability, the examiner must offer an opinion as to whether it is at least as likely as not that it manifested during, or as a result of active military service. 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. 4. Finally, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory condition found to be present. 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 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 is asked to address the following: (a) Identify and diagnose any current (at any point during the appeal period) respiratory conditions; and (b) For each diagnosed condition, provide an opinion as to whether the diagnosed condition is at least as likely as not related to service, to include exposure to asbestos. 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) 5. 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.