Citation Nr: 21032151 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 15-02 274 DATE: May 26, 2021 REMANDED Entitlement to service connection for chronic lumbar strain with right lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 2002 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case for further development in August 2018. The Board also remanded the issue of entitlement to service connection for degenerative changes of the cervical spine. Following an April 2020 supplemental statement of the case that denied entitlement to service connection for degenerative changes of the cervical spine, the Veteran appealed the decision by submitting a VA Form 20-0996, Decision Review Request: Higher-Level Review in June 2020. The Agency of Original Jurisdiction (AOJ) issued a higher-level review rating decision in November 2020 granting service connection for degenerative changes of the cervical spine with an evaluation of 10 percent effective June 29, 2012, and an evaluation of 30 percent effective May 31, 2019. As such, that claim is no longer before the Board on appeal. However, the issue of the Veteran's entitlement to service connection for chronic lumbar strain with right lower extremity radiculopathy has been returned to the Board for appellate review. Although the Board regrets the additional delay, further development is required before a decision may be made on the merits of the issue on appeal. When this issue was last before the Board in August 2018, the Board found the opinion of the June 2013 VA examiner inadequate because the examiner did not address the Veteran's reports of intermittent low back pain continuing since service and because the examiner did not adequately discuss the Veteran's in-service treatment for his low back and instead focused on the Veteran's lack of recall of a specific injury in service. The Board further noted that the examiner had not provided adequate rationale to support their negative opinion, rather the examiner simply noted that there was inadequate evidence to support the claim without an explanation of what evidence the examiner had considered to be inadequate and why the evidence was considered inadequate to support the claim. The remand instructed the RO to schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's lumbar strain with radiculopathy of the right lower extremity. The remand instructed the examiner to addresses the multiple entries in the Veteran's service treatment records reflecting treatment for back pain, as well as the Veteran's reports of continued back pain after service in providing his or her opinion. A new examination was conducted in May 2019. The May 2019 examiner opined that it was less likely than not that the Veteran's lumbar strain with radiculopathy of the right lower extremity was incurred while on active duty. As rationale, the examiner explained that the Veteran's service treatment records were silent for any lumbar spine complaints. The examiner stated that the service treatment records noted multiple visits for mid/upper back complaints of the thoracic spine, but no treatment for the lumbar spine was noted. She therefore concluded that the Veteran's current lumbar spine condition was not related to the back pain he sought treatment for during service. She also noted that there was no objective evidence of radiculopathy. The Board finds the rationale provided by the May 2019 VA examiner to support her opinion that the Veteran's lumbar strain is not related to his active duty service inadequate because the examiner did not address the Veteran's service treatment records from March 2005 in which the Veteran sought treatment for low back pain. See STR-Medical, received September 2005. She also did not address the Veteran's lay statements that his low back pain began during service and has continued since service. As the May 2019 VA examination failed to comply with the Board's remand instructions, remand is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to a qualified clinician to obtain an addendum opinion as to the nature and etiology of the Veteran's chronic lumbar strain with right lower extremity radiculopathy. All pertinent evidence of record must be made available to and reviewed by the examiner. If the examiner determines that an examination is necessary, one should be scheduled. 2. After reviewing the record, the examiner must provide an opinion as to whether it is as likely as not (50 percent or greater probability) that the chronic lumbar strain with right lower extremity radiculopathy is causally related to the Veteran's military service. In providing this opinion, the examiner should consider and address the Veteran's lay statements concerning the onset of his symptomatology. The Veteran is capable to report symptoms capable of lay observation. The examiner is also asked to consider and address the Veteran's complaints of low back pain in service treatment records dated March 2005. In these records the Veteran complained of low back pain related to a work injury that occurred in February 2004. It should be noted that the Veteran is competent to attest to factual matters of which he had or had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A full rationale must be provided for any opinion offered and a thorough explanation would be helpful for the Board. (Continued on the next page) The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity for an examination if an examination is deemed necessary. If a VA examination proves not feasible for any reason, the claims file should still be reviewed by an appropriate professional for the purpose of providing the requested opinions. 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.