Citation Nr: 21029461 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-38 914 DATE: May 13, 2021 REMANDED Restoration of service connection for cervical spine arthritis, severed effective May 1, 2016, is remanded. Restoration of service connection for bilateral shoulder arthritis, severed effective May 1, 2016, is remanded. Restoration of service connection for lumbar spine degenerative disc disease (DDD), severed effective May 1, 2016, is remanded. Restoration of service connection for right thumb arthritis, severed effective May 1, 2016, is remanded. Restoration of service connection for post-surgical scars, severed effective May 1, 2016, is remanded. Entitlement to service connection for left lower extremity (LLE) nerve disability, claimed as pinching nerves, is remanded. Entitlement to service connection for right lower extremity (RLE) nerve disability, claimed as pinching nerves, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1967 to January 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2014 and February 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A December 2018 Board decision remanded claims of entitlement to service connection for left hand arthritis, peripheral neuropathy of the LLE, peripheral neuropathy of the RLE, and entitlement to TDIU for additional development. During remand status, the RO granted service connection for arthritis of all five fingers of the left hand. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The Board notes that the RO has labeled and adjudicated the Veteran's claim of entitlement to service connection for pinching nerves as entitlement to service connection for LLE and RLE peripheral neuropathy. However, the Board has recharacterized the Veteran's claim for pinching nerves more broadly as a claim for a LLE and RLE nerve disorder, to more broadly reflect that the Veteran seeks service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 58 (2009) (the scope of a claim must include any disability reasonably encompassed by the description of the claim, the described symptoms, and any other relevant evidence of record). 1. Restoration of service connection for cervical spine arthritis, severed effective May 1, 2016. 2. Restoration of service connection for bilateral shoulder arthritis, severed effective May 1, 2016. 3. Restoration of service connection for lumbar spine DDD, severed effective May 1, 2016. 4. Restoration of service connection for right thumb arthritis, severed effective May 1, 2016. 5. Restoration of service connection for post-surgical scars, severed effective May 1, 2016. Issues 1 5: In August 2016, the Veteran submitted a notice of disagreement (NOD) to the February 2016 rating decision severing service connection for cervical spine arthritis, bilateral shoulder arthritis, lumbar spine DDD, right thumb arthritis, and post-surgical scars. A statement of the case (SOC) has not been issued in response to this NOD. Accordingly, remand is warranted. 38 C.F.R. § 20.904(c). An unprocessed NOD shall be remanded, not referred, to the RO for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-241. Although the RO indicated that such claims were in appellate status, see Correspondence (August 2018), the subsequent Board decision's notation that an NOD to the February 2016 rating decision was not submitted and the lack of the issuance of a SOC in almost five years suggests otherwise. Additionally, the facts that lumbar spine and shoulder examinations were scheduled three weeks after the Veteran submitted a March 2021 supplemental claim for service connection for the disabilities severed in February 2016 and the date of claim listed on the examination scheduling request is March 2021, indicate that the timely August 2016 NOD, which was not acknowledged by VA, did not place those claims in appellate status. A timely filed NOD initiates appellate review and gives the Board jurisdiction. See Roy v. Brown, 5 Vet. App. 554, 555 (1993) ("appellate review of an RO decision is initiated by an NOD"); see also Manlincon v. West, 12 Vet. App. 238 (1999) (where there is a NOD, the Board has jurisdiction, and next step is SOC). The Board finds that, in addition to remand for issuance of a SOC, issues 1 5 require clarification of the medical evidence for a proper appellate decision. 38 C.F.R. § 20.904(a). The duty to assist might require assistance in developing more than one theory in support of a claim, Robinson v. Peake, 21 Vet. App. 545, 552, (2008), and the Board must consider all issues raised by the evidence of record. Id. (citing Solomon v. Brown, 6 Vet. App. 396, 402 (1994)). 6. Entitlement to service connection for LLE nerve disability, claimed as pinching nerves. 7. Entitlement to service connection for RLE nerve disability, claimed as pinching nerves. Issues 6 & 7: The Veteran is claiming service connection for pinching nerves and reports back pain from his buttocks down to his legs, with lower extremity pain, numbness, cramps, weakness, and limitation of motion. See Correspondence (August 2011); Correspondence (December 2015). As an initial matter, the Board finds that the Veteran's claims for service connection for LLE and RLE nerve disability, claimed as pinching nerves and indicated by the evidence to be secondary to his lumbar DDD, see C&P Exam (July 2018), is inextricably intertwined with the remanded claim for restoration of service connection for lumbar spine DDD. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, adjudication of such claims must be deferred pending the outcome of the Veteran's claim for restoration of service connection for lumbar spine DDD. Additionally, the Board finds that the VA medical opinions regarding the Veteran's claimed LLE and RLE nerve disorder are inadequate for adjudicative purposes, as explained below. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An adequate medical opinion must be based on an accurate factual premise and consideration of a veteran's prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, the opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). In sum, an adequate medical examination report or opinion must "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). A July 2018 VA examination report for peripheral nerves conditions shows that the examiner opined that the Veteran's nerve disorder is at least as likely as not secondary to diabetes mellitus. However, the examiner provided no medical reasoning or analysis why the Veteran's diabetes mellitus is the etiology. No discussion of the onset dates of the primary or secondary disabilities, or what evidence indicates such an etiology, was provided. Additionally, the examiner provided no medical reasoning or analysis on why diabetes mellitus was more likely than his lumbar spine DDD to be the etiology of his lower extremity complaints. Notably, an October 2009 VA examination noted that results of electromyography (EMG) testing showed lumbar radiculopathy. Results from magnetic resonance imaging (MRI) in the Veteran's private treatment records show multifactorial impingement of both exiting L3 nerve roots and compression of S1 and L5 nerve roots. See Medical Treatment Record - Non-Government Facility (November 2013). Moreover, the July 2018 VA examiner also opined that the Veteran's "lower extremity complaints are those of lumbar radiculopathy, NOT peripheral neuropathy." See C&P Exam (July 2018). Further, recent development indicates that the Veteran has polyarthralgia (arthritis of multiple joints) which preexisted his service and was aggravated beyond its natural progression during his service. An August 2020 VA examiner opined that it is "possible that the veteran has polyarthralgia of several joints... [and that his] military duties may have aggravated this condition beyond the natural progression." See C&P Exam (August 2020). Although the examiner did not specify which joints were aggravated, the opinion indicates that the Veteran's preexisting arthralgia consists of more than just his hands, which is consistent with a June 2013 VA opinion that the Veteran's preexisting arthralgia may be related to his lumbar spine DDD. See C&P Exam (June 2013). However, no opinion has been obtained to determine if the Veteran's LLE and RLE complaints are due to his lumbar spine DDD, which is remanded herein. In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, to ensure that VA has met its duty to assist, remand is required. 38 C.F.R. § 3.159(c)(4). 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. The issue of TDIU is inextricably intertwined with the above claims. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. The RO should issue a statement of the case that addresses the issues of restoration of service connection for (1) cervical spine arthritis, (2) bilateral shoulder arthritis, (3) lumbar spine degenerative disc disease, (4) right thumb arthritis, and (5) post-surgical scars. Then, only if the appeal is timely perfected, these issues are to be returned to the Board for further appellate consideration, if otherwise in order. 2. Schedule the Veteran for a neurologic examination, or obtain an addendum opinion, with an appropriate clinician to determine the etiology of the Veteran's lower extremity complaints, claimed as pinching nerves. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The opinion should, among other things, include a discussion of the Veteran's documented medical history and assertions, to include the medical evidence showing nerve compression and lumbar radiculopathy discussed above. 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). NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of medical studies or literature supporting causation or aggravation. The clinician must opine on: Direct Service Connection (a) Whether any nerve disorder diagnosed is at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Secondary Service Connection (b) Whether any nerve disorder diagnosed is at least as likely as not (1) proximately due to service-connected disability, to include polyarthralgia; or (2) aggravated beyond its natural progression by service-connected disability, to include polyarthralgia. Provide a rationale that addresses causation and aggravation as independent concepts. 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions 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, 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). 4. After completion of the above and any additional development deemed necessary, the remaining issues on appeal should be readjudicated. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.