Citation Nr: 21015334 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-12 556 DATE: March 17, 2021 REMANDED The claim of entitlement to an initial evaluation higher than 20 percent for intermittent flare-ups of mechanical low back pain is remanded. The claim of entitlement to service connection for radiculopathy of the left hip is remanded. The claim of entitlement to service connection for urinary frequency is remanded. The claim of entitlement to service connection for an acquired psychiatric disorder, to include depression and a sleep disorder, is remanded. REASONS FOR REMAND The Veteran had active service from October 1969 to October 1973. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2010 rating decision by the Agency of Original Jurisdiction (AOJ) that granted service connection for the Veteran’s low back disability and assigned a 20 percent evaluation. Also before the Board are issues of entitlement to service connection for an acquired psychiatric disorder, radiculopathy of the left hip, and urinary frequency, which were denied by the AOJ in July 2017. In November 2019, the Board denied service connection for an acquired psychiatric disorder, radiculopathy of the left hip, a higher initial rating for the Veteran’s low back disability, a higher initial rating for radiculopathy of the right lower extremity, and an earlier effective date for the award of service connection for right lower extremity radiculopathy. The issue of entitlement to service connection for urinary frequency was remanded. That issue was again remanded in July 2020. It has been recertified to the Board for appellate consideration. The Veteran appealed the claims denied by the Board to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted the parties’ October 2020 Joint Motion for Remand (JMR), vacating that portion of the Board’s November 2019 decision that had denied service connection for an acquired psychiatric disorder and for radiculopathy of the left hip; and an initial rating higher than 20 percent for the Veteran’s low back disability. The parties agreed that the Veteran did not challenge the Board’s decision to the extent that it denied a higher initial rating for radiculopathy of the right lower extremity and an earlier effective date for the award of service connection for radiculopathy of the right lower extremity. Initial evaluation higher than 20 percent for intermittent flare-ups of mechanical low back pain In the October 2020 JMR, the parties indicated that the December 2018 VA examination report indicated that the Veteran did not report flare-ups. They pointed out that this was inconsistent with the examiner’s diagnosis of intermittent flare-ups of mechanical low back pain, and that the record included the Veteran’s statements regarding flare-ups requiring him to stop working and rest. Given the inconsistencies in the examination report regarding the Veteran’s reported flare-ups, the Board concludes that an additional examination is necessary to determine the severity of the Veteran’s low back disability. Service connection for radiculopathy of the left hip The Veteran asserts that he has radicular symptoms in his left lower extremity, specifically his left hip, that is related to his service-connected low back disability. In the October 2020 JMR, the parties agreed that the Board failed to provide an adequate statement of reasons or bases as to whether the VA examinations of record were adequate for the purpose of deciding the claim. In this regard, they pointed out that the Board had denied the claim on the basis that there was no diagnosis of the claimed disability. They noted that while the December 2018 examiner had noted the Veteran’s report of low back pain that radiated into his bilateral hips, he determined that there was no current diagnosis of radiculopathy. The parties pointed out that on VA examination in July 2016, the examiner’s review of the record included the report of a private November 2010 nerve conduction study that indicated probable L5-S1 bilateral radiculopathy. They indicated that there was a lack of clarity regarding whether the 2018 VA examiner had reviewed an accurate medical history. Considering lack of clarity as to whether the 2018 VA examiner reviewed the Veteran’s history, to include private records indicating possible neurological manifestations of the Veteran’s low back disability, the Board concludes that an additional examination is necessary. Service connection for urinary frequency The Veteran seeks service connection for urinary frequency as secondary to his service-connected low back disability. The Board has remanded this issue on two occasions, in November 2019 and in July 2020. In the July 2020 remand, the Board indicated that opinions provided in December 2018 and December 2019 were inadequate because they were premised on an assumption that urinary frequency was related to an enlarged prostate. It noted that the Veteran’s medical records were silent regarding a diagnosis of enlarged prostate or benign prostatic hypertrophy. The issue was again remanded with a direction for the AOJ to obtain an addendum opinion. It specified that the provider should provide an opinion regarding whether urinary frequency was proximately due to or aggravated by the Veteran’s low back disability. In October 2020, a physician reviewed the record. He recited the Veteran’s history, to include the findings referable to enlarged prostate in the previous opinions. He concluded that urinary frequency was more likely due to enlarged prostate than the service-connected lumbar spine disability. However, as noted previously by the Board, the medical evidence is silent regarding enlarged prostate or BPH. Thus, absent such findings, this rationale is inconsistent with the record and cannot serve as the basis to decide this claim. An additional examination is necessary. Service connection for an acquired psychiatric disorder The Veteran maintains that he experienced depression and disordered sleep secondary to his service-connected low back disability. The parties to the JMR questioned whether a June 2017 VA examination report was adequate for the purpose of deciding the Veteran’s claim of entitlement to service connection for a psychiatric disorder. They noted that the Board denied the claim because there was no current diagnosis. The parties noted that, while the 2017 examiner concluded that there was no psychiatric disorder diagnosed, there was evidence of record relevant to psychiatric symptoms. Specifically, they pointed out that a January 2007 depression screen was negative, and that an August 2015 VA nursing note indicated the Veteran’s report of anhedonia, feeling down and depressed, and being hopeless. They additionally noted that the examiner reasoned that the record did not indicate that the Veteran had depression and pointed out that the examiner did not explain why, based on his examination, the Veteran’s symptoms did not support a diagnosis of depression. They also pointed out that the examiner did not provide an assessment regarding the Veteran’s complaints of sleep disturbance. Considering the deficiencies discussed above, the Board concludes that an additional examination is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the severity of his service-connected low back disability and the etiology of his claimed left hip radiculopathy and urinary frequency. The claims file must be made available to the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. Following review of the record and examination of the Veteran, the examiner should address the following: Low back disability: All pertinent symptomatology and findings referable to the Veteran’s thoracolumbar spine should be reported in detail, including range of motion (ROM) testing. The examiner should record the Veteran’s description of flare-ups and functional limitation caused by his low back disability. The examiner should set forth the Veteran’s range of motion findings and note any pain, pain on use (to include the point during range of motion at which the Veteran reports pain), weakness, incoordination, or excess fatigability. If feasible, the examiner should portray any additional functional limitation of the spine due to these factors in terms of degrees of additional loss of motion. If not feasible, this should be stated and discussed in the examination report. If the Veteran does not have pain or any of the other factors, that fact should also be noted. The examiner should also test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. 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. Left hip radiculopathy: The examiner should conduct a neurological examination and indicate whether the Veteran has any neurological symptoms referable to this left hip and/or left lower extremity. In reaching this determination, the examiner should specifically review records from Jerseyville Pain Management Center and a November 2010 nerve conduction study report indicating probable L5-S1 bilateral radiculopathy. If the examiner renders a diagnosis, he or she should indicate whether such is related to the Veteran’s service-connected low back disability. Urinary frequency: The examiner should conduct an examination and provide an opinion with respect to whether it is at least as likely as not (50 percent or more probability) that the Veteran’s urinary frequency was caused OR aggravated (worsened beyond normal progression) by the Veteran’s service-connected low back disability. 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 examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must 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. 2. Schedule the Veteran for an examination to determine the nature and etiology of his claimed acquired psychiatric disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should indicate whether diagnoses of depression or sleep disorder are appropriate and should also identify any other current acquired psychiatric disorder. With respect to any diagnosed acquired psychiatric disorder, the examiner should provide an opinion regarding whether it is at least as likely as not that such disorder is etiologically related to service. The examiner should also provide an opinion regarding whether it is at least as likely as not that any diagnosed acquired psychiatric disorder was caused or aggravated (worsened beyond normal progression) by the Veteran’s service-connected low back disability. 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 examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must 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. (Continued on the next page)   3. Then, readjudicate the Veteran’s claims. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, 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.