Citation Nr: 21031484 Decision Date: 05/22/21 Archive Date: 05/22/21 DOCKET NO. 15-18 880A DATE: May 22, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for left shoulder impingement syndrome is remanded. Entitlement to service connection for right shoulder impingement syndrome is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for alcohol use disorder, as secondary to posttraumatic headaches, peripheral vestibular disorder, scars, and cervical muscle spasm, is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) secondary to medications taken for service-connected disabilities is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary for medications for service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active service from April 1978 to June 1982. This claim was previously before the Board in October 2018, at which time the Board remanded it for additional development. Additional development is needed before the claim can be decided on the merits. 1. Entitlement to service connection for a lumbar spine disability is remanded. 2. Entitlement to service connection for right lower extremity radiculopathy is remanded. 3. Entitlement to service connection for left lower extremity radiculopathy is remanded. In October 2018 the Board remanded the claim of service connection for a lumbar spine disability in order for the Veteran to be to obtain a new medical opinion. It was noted that the November 2014 VA examination could not be given probative value because the examiner did not consider the Veteran's complaints of pain since service and the diagnosis of a lumbar strain. The Veteran also had had a VA examination April 2012 with the same examiner. In August 2019 the same VA examiner reviewed the claim and wrote that the rationale was the same as at the April 2012. The April 2012 opinion states: The lumbar spine condition is less likely as not secondary [to the] military service accident (1982) since lumbar x-rays done [in] 2008 were negative for present findings of L1 compression fracture and only mild spondylosis. [Two] events unrelated to service can explain the etiology of the 'recent' L1 compression fracture (as reported on the lumbar MRI dated 9/5/2009). 1.) private MD evaluation brought by the Veteran with documented comment at page 3 of report 'stepped one year ago and fall at home.' 2.) The other possible etiology documented at a May 12, 2010 psychiatry note, 'unemployed since [a] few months ago when he [quit] his security guard job after an assault.' The August 2019 opinion also stated that the Veteran's lumbar degenerative changes are non-traumatic (fractures) secondary to the normal aging process. In June 2020 the examiner opined that the lumbar spine disability and bilateral lower extremity radiculopathy were less likely manifested within a year of service due to the lack of evidence in the STRs or from within a year of service. It was noted that orthopedic treatment notes form service did not show these disabilities. Compliance by the Board or the RO with remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed in the Board's October 2018 remand, the examiner was instructed to consider the Veteran's complaints of pain since service and the diagnosis of a lumbar strain. Since the August 2019 opinion does not consider the Veteran's reports of pain since service, it is insufficient. Furthermore, an opinion regarding the etiology of the bilateral lower extremity radiculopathy was not provided. The Veteran must be scheduled for a new examination before the claims can be decided on the merits. 4. Entitlement to service connection for left shoulder impingement syndrome is remanded. 5. Entitlement to service connection for right shoulder impingement syndrome is remanded. 6. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. 7. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. In October 2018 the Board remanded the claims for service connection for the above issues for a new medical opinion. The November 2014 VA examiner's rationale was insufficient because it was based entirely on the lack of in-service complaints. The examiner did not consider whether there is a causal connection between the Veteran's post-service diagnoses and in incident, injury, or event from service. In August 2019, the VA examiner opined that the bilateral shoulder condition and clinical evidence of sensory periphery neuropathy of the lower extremities was not related to service, to include the March 1982 motor vehicle accident. The examiner further wrote that the bilateral shoulder condition was related to atraumatic changes of the aging process. The sensory peripheral neuropathy had a metabolic etiology unrelated to traumatic events. In June 2020 the examiner opined that the bilateral shoulder condition and bilateral lower extremity periphery neuropathy were less likely manifested within a year of service due to the lack of evidence in the STRs or from within a year of service. It was noted that orthopedic treatment notes from service did not show these disabilities. The Veteran wrote in his December 2014 notice of disagreement that he questioned the credentials of the VA examiners. The U.S. Court of Appeals for the Federal Circuit has held that once an appellant raises the issue of competency, the Board "must then make factual findings regarding the qualifications and provide reasons or bases for concluding whether or not the medical examiner was competent to provide the opinion." Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). Therefore, a remand is necessary to obtain information regarding the credentials of Dr. J.L.R.-S., who examined the Veteran in April 2012, November 2014, and wrote the August 2019 opinion, and Dr. J.E.A.-N., who cosigned the August 2019 opinion. If this information is unavailable, or the qualifications are deemed to be inadequate, a qualified examiner should be requested to provide an addendum opinion. 8. Entitlement to service connection for alcohol use disorder, to include as secondary to posttraumatic headaches, peripheral vestibular disorder, scars, and cervical muscle spasm The Veteran had a VA examination related to alcohol use disorder in November 2014 with Dr. M.M.V. As discussed above, the Veteran questioned the qualifications of the VA examiners in the December 2014 notice of disagreement. In October 2018, the Board remanded the claim for a new medical opinion. In August 2019 Dr. M.M.V. reviewed the record and opined that the Veteran's alcohol use disorder and alcohol induced depressive disorder were related conditions. Alcohol use disorder and alcohol induced depressive disorder were mental conditions that were not related to the service-connected conditions. They were a result of the Veteran's decisions. The impacts of family, peer pressure, and gateway drug abuse are important risk factors. There is no evidence in the literature indicating a direct physiological consequence between alcohol use disorder and alcohol induced depressive disorder and headaches, peripheral vascular disease, scars, cervical spine disorder, lumbar spine disorder, left and right shoulder impingement, left and right lower extremity peripheral neuropathy, GERD, and erectile dysfunction. There was also no evidence that alcohol use disorder and alcohol induced depressive disorder had been aggravated beyond its natural course by the service-connected headaches, peripheral vascular disease, and scars. Since the Veteran has questioned the qualifications of Dr. M.M.V., a remand is necessary to obtain information regarding her credentials. See Francway, 940 F.3d at 1308. If this information is unavailable, or the qualifications are deemed to be inadequate, a qualified examiner should be requested to provide an addendum opinion. 9. Entitlement to service connection for GERD secondary to medications taken for service-connected disabilities is remanded. 10. Entitlement to service connection for erectile dysfunction, to include as secondary for medications for service-connected disabilities is remanded. A November 2012 VA examiner opined that the Veteran's GERD and erectile dysfunction were less likely than not proximately due to or the result of the service-connected conditions, which were noted to be migraine headaches and scars. The Veteran reported not taking any medication for these conditions. Service connection is now also in effect for peripheral vestibular disorder (dizziness), although the record does not show that the Veteran takes medication for it. A medication list from August 2016 VA treatment records includes acetaminophen and tramadol three times a day for pain. A medication list from April 2020 VA treatment includes acetaminophen three times a day for pain and gabapentin twice a day for neuropathic pain. The resolution of the claims for service connection for a lumbar spine disability, shoulder disabilities, and lower extremity peripheral neuropathy and radiculopathy may impact whether the Veteran is entitled to service connection for GERD and erectile dysfunction secondary to medications for service-connected disabilities. As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran's claims of service connection for GERD and erectile dysfunction would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). Service connection is now in effect for cervical muscle spasm. On remand, the Veteran should be scheduled for a VA examination regarding the relationship between any medication taken for this disability and the service-connected headaches and peripheral vestibular disorder and his GERD and erectile dysfunction. The matters are REMANDED for the following action: 1. Obtain information regarding the credentials of Dr. J.L.R.-S., who examined the Veteran in April 2012 and November 2014, and provided an August 2019 opinion, Dr. J.E.A.-N, who co-signed the August 2019 opinion. This development must include, but is not limited to, obtaining and associating with the Veteran's VA file the qualifications (such as a curriculum vitae or similar demonstrable documentation which may be redacted as deemed warranted) of Dr. J.L.R.-S. and Dr. J.E.A.-N. 2. Obtain information regarding the credentials of Dr. M.M.V., who conducted a mental health examination in November 2014 and provided an opinion in August 2019. This development must include, but is not limited to, obtaining and associating with the Veteran's VA file the qualifications (such as a curriculum vitae or similar demonstrable documentation which may be redacted as deemed warranted) of Dr. M.M.V. 3. Schedule the Veteran for an examination by an appropriate clinician other than Dr. J.L.R.-S. to determine the nature and etiology of the lumbar spine disability and bilateral lower extremity radiculopathy. The examiner must be given full access to the Veteran's complete VA claims file and the Veteran's electronic records for review. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disability is related to service, to include the March 1982 motor vehicle accident, or was incurred within a year of service. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left and right lower extremity radiculopathy is related to service, to include the March 1982 motor vehicle accident. The examiner must consider the Veteran's credible reports of back pain since his active service, the December 2004 diagnosis of a lumbar muscle spasm, and the diagnosis of lumbar strain beginning in March 2005. The examiner may not consider the lack of continuity of treatment in rendering an opinion. The opinions may not be based solely on the lack of treatment during service. The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of GERD. The examiner must be given full access to the Veteran's complete VA claims file and the Veteran's electronic records for review. The examiner must provide an opinion as to whether: It is at least as likely as not (50 percent or greater probability) that the Veteran's GERD is related to service. GERD is at least as likely as not (50 percent or greater probability) proximately due to medication taken for cervical spine spasm, posttraumatic headaches, peripheral vestibular disorder, and the service-connected scars. GERD has been aggravated beyond its natural course by medication taken for cervical spine spasm, posttraumatic headaches, peripheral vestibular disorder, and the service-connected scars. The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary, citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of erectile dysfunction. The examiner must be given full access to the Veteran's complete VA claims file and the Veteran's electronic records for review. The examiner should provide an opinion as to whether: It is at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction is related to service. Erectile dysfunction is at least as likely as not (50 percent or greater probability) proximately due to medication taken for cervical spine spasm, posttraumatic headaches, peripheral vestibular disorder, and the service-connected scars. Erectile dysfunction has been aggravated beyond its natural course by medication taken for cervical spine spasm, posttraumatic headaches, peripheral vestibular disorder, and the service-connected scars. The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary, citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, 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.