Citation Nr: 21027770 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-32 370 DATE: May 6, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for bilateral leg disability (numbness), claimed as secondary to a low back disability, is remanded. Entitlement to service connection on secondary basis for bilateral hand disability (numbness), claimed as secondary to a neck disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1993 to August 1996. The matter was before the Board on appeal of a November 2014 rating decision of the Agency of Original Jurisdiction (AOJ). In July 2019, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. In a December 2019 decision, the Board denied service connection for gastroesophageal reflex disease (GERD), low back, neck, bilateral leg, bilateral hand disabilities, and psychiatric disorder. In the same decision, the Board remanded the service connection claims for bilateral hearing loss, tinnitus, and headaches. In December 2020, the Veteran appealed the portion of the Board's to the United States Court of Appeals for Veteran Claims (Court) and expressly limited his arguments to the issues of service connection for back and neck disabilities, bilateral leg and hands on a secondary basis. The appellant also indicated that the Court dismiss the appeal with respect to those issues expressly waived. In a December 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties and vacated, in part, the Board's December 2019 decision with regard to the issues of service connection for back, neck, and bilateral leg and hand disabilities, and remanded the matter to the Board consistent with the terms of the joint motion. 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a neck disability. By joint motion, the parties agreed that the Board erred when it relied on an inadequate June 2014 VA medical opinion to deny service connection for low back and neck disabilities. See JMPR at 3. The parties pointed out deficiencies in the June 2014 examiner's opinion that although the examiner noted reports of low back and neck pain since in-service injuries, the examiner "opined that neither condition was related to service because, in part, the in-service injuries were not severe enough to cause his current back and neck conditions." Id. Specifically, the parties indicate that "the examiner did not address Appellant's lay statements of continuous symptoms in her rationale." Id. Additionally, the parties agreed that "the Board never addressed Appellant's lay evidence of continued symptoms since service" including the July 2019 Board Hearing testimony. Id. at 4. The parties state that although the "Board found that the medical evidence shows that Appellant did not experience any symptoms of low back and neck disabilities for at least 10 years after service", the Board did not adequately address the lay statements of continuity of symptomatology. Id. The service treatment records show a March 1995 clinical note which indicates the Veteran fell and felt pain in his sacrum-coccyx. He experienced sharp low back pain that was assessed as resolving sacral/coccyx. In January 1996, he experienced neck pain with radicular symptoms in his arms. The assessment was muscle spasms. A June 1996 separation examination indicates a diagnosis of minimal asymptomatic scoliosis. At his hearing, the Veteran stated that since his back and neck injury due to a fall in the storeroom, "the pain would come and go through the years, and then started getting progressively worse through the years to the point where I started having degenerative discs, pinched nerves, sharp needle pains up and down my back, and also the arthritis..." See Hearing Transcript at 4, 6. In light of the deficiencies raised in the joint motion, the Board concludes that a remand is necessary to obtain an adequate medical opinion which takes into consideration the Veteran's medical history and lay statements. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 3. Entitlement to service connection for bilateral leg disability secondary to a low back disability. 4. Entitlement to service connection on secondary basis for bilateral hand disability secondary to a neck disability. By joint motion, citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991), the parties agreed that "remand of the claims of service connection for bilateral leg and hand disabilities is warranted because those matters are inextricably intertwined with the remanded claims for low back and neck disabilities." See JMPR at 4. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a qualified medical professional to determine the nature and etiology of the Veteran's claimed low back and neck disabilities. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. Based on the review of the record, the examiner should provide an addendum opinion on the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's claimed back and neck disabilities began during active service or is causally related to service? Is at least as likely as not (a 50 percent or greater probability) that the Veteran's back and neck disabilities manifested within one year of his service discharge and, if so, describe the manifestations. In rendering the opinion, the examiner is asked to consider medical records (to include June 2014 VA examination and opinion) and lay evidence of record (July 2019 hearing testimony). The Veteran stated that since his fall in the storeroom in March 1995 where he injured his back and neck, "the pain would come and go through the years, and then started getting progressively worse through the years to the point where I started having degenerative discs, pinched nerves, sharp needle pains up and down my back, and also the arthritis..." See July 2019 Hearing Transcript at 4, 6. A complete rationale for all opinions is requested. 2. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claims on appeal. If the determination remains unfavorable, the Veteran and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. An, 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.