Citation Nr: 21028127 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-38 961 DATE: May 10, 2021 REMANDED Entitlement to service connection for heat stroke residuals, to include headaches, is remanded. Entitlement to an initial rating in excess of 10 percent for lumbar contusion, with degenerative joint disease (lumbar spine disability), is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2009 to June 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were remanded by the Board in October 2018. The Board finds that remand is once again necessary. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for heat stroke residuals, to include headaches, is remanded. In his July 2015 notice of disagreement and August 2016 substantive appeal, the Veteran asserted that he has residuals of heat stroke, to include dizziness and weakness in hot temperatures and headaches. He reported that this is due to an in-service heat stroke. In a June 2020 statement, the Veteran stated that during service, he was told that he would feel the effects of the heat stroke and they would be lasting. The Board concludes that remand is required to obtain an adequate etiological opinion and compliance with the prior Board remand. Remand is necessary to obtain an etiological opinion that complies with prior Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO 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, 11 Vet. App. at 271. In an October 2018 remand, the Board found that a June 2016 VA examination and opinion were inadequate. The VA examiner found there were no residuals of a heat stroke, other than tension headaches, which they stated was an independent condition. The examiner, however, provided no other etiological opinion or supporting explanation for that conclusion. Thus, the Board remanded for an examination and opinion that addressed whether headaches were related to the in-service heat stroke. While on remand, a September 2019 VA examination and opinion was obtained. The examiner opined that migraine headaches were unrelated to heat stroke, as there was insufficient evidence of a diagnosis of migraine. The examiner did not provide an opinion regarding tension headaches, which was diagnosed in the 2016 VA examination report. Accordingly, remand is required to address tension headaches. 2. Entitlement to an initial rating in excess of 10 percent for lumbar spine disability is remanded. In his July 2015 notice of disagreement and August 2016 substantive appeal, the Veteran contends that he is entitled to a higher rating because he is in constant pain, cannot stand for more than out hour without horrible pain, and has had shots and nerve blocks that have not worked. He also reported doing physical therapy and acupuncture, and using a TENS unit. The Board finds that remand is required to obtain VA treatment records and a clarifying examination and opinion. Remand is required to obtain VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159(c)(2). Here, the most recent VA treatment records are dated in March 2016. Records dated in July 2015, August 2015, November 2015, and March 2016, show treatment for his lumbar spine disability, suggesting regular treatment. Additionally, at a September 2019 VA examination, he noted recent acupuncture. Accordingly, remand is required to obtain VA treatment records for the last four years. Remand is required for an examination to clarify whether there are neurological complications of the lumbar spine disability. If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2. Here, there is conflicting evidence of neurological complications of the service-connected lumbar spine disability. In the June 2015 VA examination report, the Veteran reported left leg pain and weakness. Sensory examination was normal, but reflex testing was not conducted. A straight leg raise test was positive and mild intermittent pain of the bilateral lower extremities was noted. In VA treatment records in 2015, there were assessments of sciatica. In a March 2016 VA record, the Veteran stated there was no longer any radiating pain. At the September 2019 VA examination, the Veteran denied radiating pain, but reported pain in the left leg down to the foot. Additionally, reflexes were absent at the ankles, but sensory examination was normal and straight leg raise testing was negative. The Board concludes that this conflicting evidence must be resolved by a current examination and by review of more current VA treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2016 to the Present. 2. Schedule the Veteran for a VA examination for residuals of a heat stroke. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to: Whether the Veteran's headaches, to include tension headaches, at least as likely as not (1) had onset in service, or (2) are otherwise related to an in-service injury, event, or disease, to include the heat stroke. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. 3. Schedule the Veteran for an examination of the current severity of his lumbar spine disability. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should also specifically comment on the existence of any neurological complications of the lumbar spine disability, to include any sciatica of the lower extremities. All indicated tests and studies are to be performed. A complete rationale should be provided for all opinions given. 4. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.