Citation Nr: 21028831 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-08 516 DATE: May 12, 2021 REMANDED Entitlement to service connection for cervical spine degenerative disc disease (cervical spine DDD) is remanded. Entitlement to service connection for headaches is remanded. Entitlement to a rating in excess of 40 percent for chronic degenerative disc disease of the lower lumbar spine (lumbar spine DDD) is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 30 percent for chronic adjustment disorder with mixed anxiety and depressed mood (acquired psychiatric disorder) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2004 to November 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2013 and December 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a notice of disagreement in March 2014 and the RO issued a statement of the case in January 2015. The Veteran submitted his substantive appeal in March 2015. The Veteran requested a Board hearing by live videoconference. Evidence of record shows the Veteran is incarcerated. In March 2021, the Veteran was sent a letter advising him that in order to proceed with the Board hearing it must be confirmed that the facility in which he is incarcerated is capable of holding a video teleconference hearing. The Veteran did not respond. Therefore, as advised in the March 2021 letter, a Veterans Law Judge will decide the appeal based on the evidence of record. The Veteran contends that his cervical spine DDD and headaches are related to his service-connected lumbar spine DDD. He also contends that he is entitled to higher ratings for his service-connected acquired psychiatric disorder, lumbar DDD, and left lower radiculopathy; and they have worsened. He further maintains that he is unemployable due to his service-connected disabilities. 1. Entitlement to service connection for cervical spine DDD is remanded 2. Entitlement to service connection for headaches is remanded Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In January 2013, the Veteran was afforded VA neck and headache examinations to determine if those conditions are related to his active duty military service or caused by, or aggravated by, his service-connected disabilities. The examiner determined that the cervical spine DDD and headaches were less likely as not caused by, a result of, or permanently aggravated by active military service or by his service-connected disabilities. The examiner's rationale regarding the cervical spine DDD was that the condition was diagnosed more than six years after exiting active military service; the Veteran's cervical spine DDD is more likely as not solely a natural progression of disease unrelated to active military service, his low back condition, and/or his left shoulder condition. However, this is merely a conclusion rather than a well rationalized opinion based on the facts and thorough medical analysis. Thus, the examiner did not adequately articulate why the Veteran's cervical spine DDD is less likely as not caused by, or aggravated by, the service-connected disabilities. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. See Id. As such, the examiner's opinion is inadequate. The examiner's rationale regarding the headaches was that "there is no mention of chronic headaches noted during active military service." The RO requested an addendum opinion pertaining to the headaches condition opinion, citing an inadequate rationale for the opinion. In April 2013, an addendum opinion was provided which opined that, the Veteran's headaches are less likely as not caused by, a result of, or permanently aggravated by his service connected DDD of the lumbar spine. The examiner's rationale was that the headaches are rarely, if ever, associated with lumbar DDD and the headaches are more likely associated with the cervical spine DDD. Although this opinion attempted to provide a thorough rationale based on medical science, the examiner failed to address whether the Veteran's headaches are at least as likely as not cause by, or aggravated by, his service connected acquired psychiatric disorder. The medical evidence of record appears to indicate that the Veteran's psychiatric symptoms contribute to his headaches. See November 2012 Mental Health Note. A medical opinion is inadequate when it does not consider all raised theories of entitlement. See Stefl. Additionally, as the opinion addressing service connection of the cervical spine DDD was inadequate, but the cervical spine DDD was indicated as causing the headaches, an assessment of the Veteran's potential service connection for headaches in this regard has not been adequately addressed. Based on the foregoing reason, remand is warranted in order to obtain addendum medical opinions. 3. Entitlement to a rating in excess of 40 percent for lumbar spine DDD is remanded 4. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded 5. Entitlement to a rating in excess of 30 percent for an acquired psychiatric disorder is remanded The most recent VA examination in connection with the Veteran's service-connected lumbar spine DDD and left lower extremity radiculopathy was August 2014. The most recent VA examination in connection with his service-connected acquired psychiatric disorder was December 2012. A private medical opinion was received in June 2015, that indicates the Veteran's acquired psychiatric disorder and lumbar spine DDD with radiculopathy may have worsened. The Veteran also contends a general worsening of his conditions. Therefore, evidence of record indicates that his disabilities may have increased in severity. Given that it is the Veteran's contention that he is entitled to increased ratings due to the worsening of his conditions, and medical evidence received since the most recent VA examinations indicates a possible worsening of the Veteran's acquired psychiatric disorder and lumbar spine DDD, the Veteran is entitled to current VA examinations to assess his current level of disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. The Board notes that the Veteran is currently incarcerated. VA has special procedures for handling the scheduling of VA examinations for incarcerated Veterans. The duty to assist incarcerated Veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement, as those individuals are entitled to the same care and consideration given to non-incarcerated Veterans. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him the necessary examination at the closest VA medical facility. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995). Nevertheless, VA's duty to assist an incarcerated Veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. The Adjudication Procedures Manual further instructs that in cases where the movement of and access to inmates is restricted by state laws, "documentation of substantial efforts to schedule and conduct the examination must be added to the claims folder." Such documentation includes "identifying and requesting the assistance of the appropriate prison officials." The examination provider is further instructed to exhaust all possible avenues for obtaining access to the incarcerated veteran for the examination. 6. Entitlement to a TDIU is remanded The issue of TDIU is inextricably intertwined with the issues of service connection for cervical spine DDD and headaches and increased ratings for lumbar spine DDD, left lower extremity radiculopathy, and acquired psychiatric disorder. The determinations of these matters may have a direct impact on whether TDIU is granted. As such, the issue of TDIU must also be remanded. Accordingly, the Board finds that further development of the record is necessary to meet VA's duty to assist the appellant in developing evidence to substantiate his claim. See 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Any outstanding, relevant, VA medical records should be obtained and associated with the claims file. 2. Obtain addendum medical opinions regarding the nature and etiology of the Veteran's cervical spine DDD and headaches. The examiner(s) must review the entire claims file, to include this remand. Only if determined necessary by the examiner(s), should the Veteran be scheduled for another VA examination. If the examiner(s) determine that another VA examination is necessary, schedule an examination pursuant to the guidance pertaining to incarcerated Veterans. Any evaluations, studies, or tests deemed necessary by the examiner(s) should be accomplished and any such results must be included in the examination report. The examiner(s) must provide the following opinions: a.) Based on the examination and review of the record, the examiner is asked to provide an opinion whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's cervical spine DDD was caused, or aggravated, by the Veteran's service-connected lumbar spine DDD, acquired psychiatric disorder, or left shoulder disability. b.) Based on the examination and review of the record, the examiner is asked to provide an opinion whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's headaches are caused, or aggravated, by the Veteran's service-connected lumbar spine DDD, acquired psychiatric disorder, or left shoulder disability. The examiner should also discuss whether the Veteran's headaches are caused, or aggravated, by his cervical spine DDD. The examiner(s) is/are advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. The examiner(s) must be advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and chronic nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. The examiner(s) must provide a complete rationale for any opinion expressed. If the examiner(s) is/are unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Schedule the Veteran for a VA examination to determine the current severity of his lumbar spine DDD and left lower extremity radiculopathy, pursuant to the guidance pertaining to incarcerated Veterans. If the RO is unable to afford the Veteran an examination due to his incarceration, then document in detail all the steps taken in attempting to do so. The claims file must be made available to, and be reviewed by, the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed. Joint testing must be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the VA 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. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he or she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports are to be considered in formulating any opinion. 4. Schedule the Veteran for an appropriate VA examination to determine the current manifestations and severity of his service connected acquired psychiatric disorder, pursuant to the guidance pertaining to incarcerated Veterans. If the RO is unable to afford the Veteran an examination due to his incarceration, then document in detail all the steps taken in attempting to do so. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. All pertinent signs and symptoms necessary for rating his disability under the rating criteria should be reported. The examiner should discuss the effect of the Veteran's acquired psychiatric disorder on his social and occupational impairment. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports are to be considered in formulating any opinion. 5. After completion of the above, and any other development deemed necessary, readjudicate the issues. If the benefits on appeal remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.