Citation Nr: 21020744 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-12 728 DATE: April 8, 2021 REMANDED Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected status post lumbar strain with degenerative disc disease, is remanded. Entitlement to service connection for a right hip disorder, to include as secondary to a service-connected status post lumbar strain with degenerative disc disease, is remanded. Entitlement to service connection for a left hip disorder, to include as secondary to a service-connected status post lumbar strain with degenerative disc disease, is remanded. Entitlement to service connection for a right shoulder disorder, to include as secondary to a service-connected status post lumbar strain with degenerative disc disease, is remanded. Entitlement to service connection for a left shoulder disorder, to include as secondary to a service-connected status post lumbar strain with degenerative disc disease, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active military service from June 1978 to January 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. This case was previously before the Board in October 2018 and December 2020, at which times the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. Service Connection The Board finds that additional development is required before the claims on appeal are decided. Cervical Spine, Hips, and Shoulders In December 2020 remand, the Board instructed that VA medical opinions for the Veteran’s claimed cervical spine, right and left hips, and right and left shoulder disorders be obtained from a medical doctor (M.D.). However, the record reflects that the February 2021 VA medical opinions were provided by a physician’s assistant. Thus, there has not been substantial compliance with the December 2020 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that substantial, rather than strict compliance, with the Board’s remand directives is required). Therefore, the Board finds that new VA medical opinions are warranted to address the nature and etiology of the Veteran’s claimed cervical spine disorder, right and left hip disorder, and right and left shoulder disorders. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). Entitlement to a TDIU The issue of entitlement to TDIU is inextricably intertwined with the service connection claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In this regard, in his May 2014 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) the Veteran reported that he was unemployed to several disabilities, including his back and legs. Hence, a determination on the claim for TDIU should be deferred pending final disposition of the claims for entitlement to service connection for cervical spine disorder, right and left hip disorders, and right and left shoulder disorders. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain an etiology opinion from a medical doctor (M.D.) to determine the nature and etiology of any currently present cervical spine disorder. The need for a physical examination or telehealth evaluation is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to the following: (A) Is at least as likely as not (50 percent or better probability) that any currently present cervical spine disorder, to include degenerative arthritis, had its onset during his active service or is otherwise etiologically related to such service? (B) Is at least as likely as not (50 percent or better probability) that any currently present cervical spine disorder was caused OR aggravated by his service-connected status post lumbar strain with degenerative disc disease? (C) Is at least as likely as not (50 percent or better probability) that any currently present cervical spine disorder was caused OR aggravated by his service-connected bilateral lower extremity radiculopathy? The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. The examiner should specifically consider and address (1) the evidence of onset of neck pain prior to the 2013 diagnosis of arthritis, to include as of 2009; (2) the September 2014 VA neck and back examinations; and (3) the July 2015 VA medical opinion that the Veteran’s neck pain was “related to abnormal gait and tension/stress caused by low back pain.” A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. Obtain an etiology opinion from a medical doctor (M.D.) to determine the nature and etiology of any currently present right and/or left hip disorders. The need for a physical examination or telehealth evaluation is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to the following: (A) Is at least as likely as not (50 percent or better probability) that any currently present right and left hip disorders, to include degenerative arthritis, had its onset during his active service or is otherwise etiologically related to such service? (B) Is at least as likely as not (50 percent or better probability) that any currently present right and left hip disorders were caused OR aggravated by his service-connected status post lumbar strain with degenerative disc disease? (C) Is at least as likely as not (50 percent or better probability) that any currently present right and left hip disorders were caused OR aggravated by his service-connected bilateral lower extremity radiculopathy? The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. the examiner should specifically consider and address (1) the September 2014 VA hip examination noting “All c/o pain to posterior hips in SI joint and L5-S1 distribution and likely related to lumbar radiculopathy not true joint pain r/t to newly found minimal DJD.”; and (2) the July 2015 VA medical opinion that the Veteran’s hip pain was “related to abnormal gait caused by low back pain.” A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 4. Obtain an etiology opinion from a medical doctor (M.D.) to determine the nature and etiology of any currently present right and/or left shoulder disorders. The need for a physical examination or telehealth evaluation is left to the discretion of the medical doctor offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to the following: (A) Is at least as likely as not (50 percent or better probability) that any currently present right and left shoulder disorders, to include shoulder strains, had its onset during his active service or is otherwise etiologically related to such service? (B) Is at least as likely as not (50 percent or better probability) that any currently present right and left shoulder disorders were caused OR aggravated by his service-connected status post lumbar strain with degenerative disc disease? (C) Is at least as likely as not (50 percent or better probability) that any currently present right and left shoulder disorders were caused OR aggravated by his cervical spine disorder? The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. The examiner should specifically consider and address (1) the September 2014 VA shoulder examination noting “It is as likely as not that his shoulder pain may be related to his neck condition and is radicular.”; and (2) the July 2015 medical opinion that the Veteran’s neck and shoulder pain were “related to abnormal gait and tension/stress caused by low back pain.” A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 5. Following the completion of the above, the Agency of Original Jurisdiction should consider whether additional development is warranted as a result of the above (e.g., development for entitlement to a TDIU). KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher O'Donnell, 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.