Citation Nr: 21029489 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 11-14 380 DATE: May 13, 2021 REMANDED Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) as secondary to service-connected disabilities, to include medications taken therefor, is remanded. Entitlement to service connection for erectile dysfunction (ED) as secondary to service-connected disabilities, to include medications taken therefor, is remanded. Entitlement to service connection for a left upper extremity neurological disorder is remanded. Entitlement to service connection for a right upper extremity neurological disorder is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1987 until October 1991. These matters come to the Board of Veterans' Appeals on appeal from a March 2010 rating decision of a Department of Veterans' Affairs (VA) regional office (RO). The Veteran participated in a hearing before the undersigned in December 2018; a transcript is associated with the claims file. In May 2019, the Board denied entitlement to service connection for these claims. In November 2020, the Court of Appeals for Veterans Claims (the Court) granted the parties' joint motion for partial remand and vacated the May 2019 decision. The Board will discuss the basis for the vacatur below. 1. Entitlement to service connection for a headache disability is remanded. 2. Entitlement to service connection for a lumbar spine disability is remanded. 3. Entitlement to service connection for a cervical spine disability is remanded. The May 2019 decision denied entitlement to service connection for these disabilities because the competent evidence did not establish a nexus between the Veteran's current headache, back, and neck disabilities and service. The Board did not find the Veteran's statements of continuity of symptomatology since service credible and afforded them no probative value. The parties' joint motion explained that the Board improperly discounted the Veteran's statements regarding evidence of continuity of symptomatology as the mere absence of medical records does not necessarily contradict the Veteran's statements about his symptom history. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In addition, the motion required the Board to consider whether an additional VA medical nexus opinion is needed to consider this lay evidence. In Miller v. Wilkie, 32 Vet. App. 249 (2020), the Court held that an examiner must address lay statements to provide an adequate medical opinion. Here, the February 2010 VA examiner failed to incorporate the Veteran's lay contentions regarding continuity of symptomatology in its nexus opinion. As such, it fails Miller, and remand is required to obtain an addendum VA medical opinion to consider them. 4. Entitlement to service connection for GERD is remanded. 5. Entitlement to service connection for ED is remanded. The May 2019 Board decision denied entitlement to service connection for GERD and ED on a secondary basis as the Board failed to find competent evidence of a nexus between these disabilities and his service-connected disabilities, to include medications taken therefor. The November 2020 joint motion stated that the July 2014 VA medical opinion lacked a rationale for the negative nexus opinions. This examiner simply stated that it was "very unlikely that sporadic use of these medications causes chronic symptoms of GERD or ED." Because the VA examiner did not provide any medical explanation for this opinion, the July 2014 VA examination is inadequate, and remand is necessary to obtain an addendum VA medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board additionally notes that the Veteran's GERD and ED claims are inextricably intertwined with his claims for lumbar spine and cervical spine disabilities (as he is taking pain medication for these disabilities). See Harris v. Derwinski, 1 Vet. App. 180 (1991), 38 C.F.R. § 4.71a. 6. Entitlement to service connection for a left upper extremity neurological disorder is remanded. The May 2019 Board decision denied entitlement to service connection for a left upper extremity neurological disorder by relying upon a February 2010 VA medical opinion. The November 2020 joint motion explained that this VA medical opinion was inadequate as it contained a conclusory rationale. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The February 2010 VA examiner opined that the Veteran's left upper extremity neurological disorder was less likely than not related to service or aggravated by injury sustained around January 1990 in service because "there is no evidence of any radicular complaint in service, Veteran was diagnosed with left C6 radiculopathy on [sic] the year 2001 by EMG study." The February 2010 VA examiner's rationale is conclusory as it states facts but fails to explain why the left upper extremity radiculopathy is not related to service. As such, remand is required to obtain an adequate VA medical opinion. The Board additionally notes that the Veteran's left upper extremity disability is inextricably intertwined with his claims for lumbar spine and cervical spine disabilities. See Harris v. Derwinski, 1 Vet. App. 180 (1991), 38 C.F.R. § 4.71a. 7. Entitlement to service connection for a right upper extremity neurological disorder is remanded. 8. Entitlement to service connection for a left lower extremity neurological disorder is remanded. 9. Entitlement to service connection for a right lower extremity neurological disorder is remanded. The May 2019 Board decision denied entitlement to service connection for these claims for a lack of evidence of a current diagnosis. Specifically, the Board found that the Veteran's reported pain in his right upper and bilateral lower extremities did not impair his earning capacity or otherwise alter the normal working movements of his body. The November 2020 motion stated that the Board must consider application of Wait v. Wilkie, 2020 US. App. Vet. Claims LEXIS 1609 (Aug. 26, 2020). In Wait, the Court determined that "to establish the presence of a disability pursuant to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person." Here, the joint motion noted that the evidence includes the Veteran's August 2014 notice of disagreement where the Veteran stated that he has "continuous pain, numbness, weakness and I have an uncontrollable and unnerving pinprick sensation throughout all my extremities." He continued that "due to all the aforementioned conditions, I also suffer of sleep deprivation which aggravates my lack of energy on a daily basis. Due to all these debilitating conditions I had to stop working due to my low energy levels and not been able to conduct my job properly." Given the content of the August 2014 notice of disagreement, the joint motion concluded that the Board's statement regarding impairment on earning capacity is not supported by the actual record. The Board notes that it is without the medical information necessary to make a fully informed decision on these claims. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). While the Veteran's medical treatment records, to include the February 2015 VA peripheral nerves examination, do not contain diagnoses for any right upper or bilateral lower extremity neurological disorders, the Veteran's August 2014 notice of disagreement satisfies the criteria of Saunders and Wait. As such, remand is necessary to obtain a VA examination to determine whether these neurological manifestations are related to service. The Board additionally notes that the Veteran's right upper extremity and bilateral lower extremity disabilities are inextricably intertwined with his claims for lumbar spine and cervical spine disabilities. See Harris v. Derwinski, 1 Vet. App. 180 (1991), 38 C.F.R. § 4.71a. 10. Entitlement to service connection for an acquired psychiatric disability is remanded. The May 2019 Board decision denied entitlement to service connection because none of the Veteran's treating mental health providers have opined that his acquired psychiatric disability is etiologically related to service. The November 2020 joint motion noted that VA failed to ensure that the duty to assist had been met with regard to private medical records from a Dr. R.M. Here, the record contains several references of psychiatric treatment by Dr. R.M. For example, VA treatment records dated from 2012 and 2013 indicate that the Veteran was receiving care from a "private psychiatrist Dr. [R.M.]." However, the Veteran's VA claims folder does not contain any records from Dr. R.M. or evidence that VA attempted to comply with 38 C.F.R. § 3.159(c)(1)(i). Remand is therefore necessary to comply with the duty to assist. The matters are REMANDED for the following action: 1. Obtain outstanding private and VA medical treatment records. Specifically, provide the Veteran with notice and requesting a VA Form 21-4142 Authorization for Release of Information, pertaining to any outstanding medical treatment records from Dr. R.M. 2. Thereafter, obtain addendum VA medical opinions regarding the nature and etiology of the Veteran's headache, lumbar, cervical, GERD, ED, bilateral upper and lower extremity disabilities. The need for another VA examination (or telehealth interview, review of the record, or similar, if an in-person examination is not feasible) is left to the discretion of the reviewing examiner. The entire claims folder, to include the November 2020 joint motion and this remand, must be reviewed. The VA examiner must provide separate, well-reasoned opinions as to each of the following: (a) Headaches Is it at least as likely as not that the Veteran's headache disability onset in service, within one year of service, or is otherwise related to service? The VA examiner must review and discuss the Veteran's lay statements regarding the origin of this disability and the continuity of symptomatology since service. The VA examiner must also discuss the December 2009 private etiological opinion from Dr. N.V. (b) Lumbar Spine Is it at least as likely as not that the Veteran's lumbar spine disability onset in service, within one year of service, or is otherwise related to service? The VA examiner must review and discuss the Veteran's lay statements regarding the origin of this disability and the continuity of symptomatology since service. Specifically, the Board notes the February 2010 VA spine examination where the Veteran reported progressively worse cervical and low back pain since a fall in service. The VA examiner must also discuss the December 2009 private etiological opinion from Dr. N.V. (c) Cervical Spine Is it at least as likely as not that the Veteran's cervical spine disability onset in service, within one year of service, or is otherwise related to service? The VA examiner must review and discuss the Veteran's lay statements regarding the origin of this disability and the continuity of symptomatology since service. Specifically, the Board notes the February 2010 VA spine examination where the Veteran reported progressively worse cervical and low back pain since a fall in service. The VA examiner must also discuss the December 2009 private etiological opinion from Dr. N.V. (d) GERD Is it at least as likely as not that the Veteran's GERD onset in service, within one year of service, or is otherwise related to service? The VA examiner must also opine: Whether it is at least as likely as not that the Veteran's GERD is caused by any of his service-connected disabilities, to include medications taken therefor? Whether it is at least as likely as not that the Veteran's GERD is aggravated by any of his service-connected disabilities, to include medications taken therefor? The Veteran is currently service connected for a left-hand disability, left-ring-finger disability, and left-wrist disability. See Rating Decision Codesheet (filed February 25, 2015). (e) ED - Is it at least as likely as not that the Veteran's ED onset in service, within one year of service, or is otherwise related to service? The VA examiner must also opine: Whether it is at least as likely as not that the Veteran's ED is caused by any of his service-connected disabilities, to include medications taken therefor? Whether it is at least as likely as not that the Veteran's ED is aggravated by any of his service-connected disabilities, to include medications taken therefor? The Veteran is currently service connected for a left-hand disability, left-ring-finger disability, and left-wrist disability. See Rating Decision Codesheet (filed February 25, 2015). (f) Left Upper Extremity - Is it at least as likely as not that the left upper extremity neurological disorder onset in service, within one year of service, or is otherwise related to service? (g) Right Upper Extremity Clarify the Veteran's right upper extremity neurological disorder diagnosis. Nevertheless, even if the Veteran is not diagnosed with a neurological disorder, opine whether it is at least as likely as not that these right upper extremity neurological manifestations impacting his earning capacity onset in service, within one year of service, or are otherwise related to service. The reviewing examiner must review, discuss, and comment on the Veteran's lay statements regarding the origin of this disability, to specifically include his August 2014 notice of disagreement. (h) Bilateral Lower Extremity Clarify the Veteran's bilateral lower extremity neurological disorder diagnoses. Nevertheless, even if the Veteran is not diagnosed with a neurological disorder, opine whether it is at least as likely as not that these bilateral lower extremity neurological manifestations impacting his earning capacity onset in service, within one year of service, or are otherwise related to service. The reviewing examiner must review, discuss, and comment on the Veteran's lay statements regarding the origin of this disability, to specifically include his August 2014 notice of disagreement. A well-reasoned response to all opinions must be provided. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.