Citation Nr: 21039698 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-35 297 DATE: July 1, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for radiculopathy of the right lower extremity secondary to a low back disability is remanded. Entitlement to service connection for radiculopathy of the left lower extremity secondary to a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran testified before the undersigned at a hearing the RO in Houston, Texas. A transcript of his testimony has been associated with the claims file. The Board remanded this matter for additional evidentiary development in a November 2018 decision. Subsequently, the RO issued a supplemental statement of the case in June 2020. The claims now return to the Board. 1. Low back disability Generally, the Veteran contends that he is entitled to service connection for a low back disability due to an in-service back injury. Service treatment records reflect that in May 1983 and June 1983 he was treated for low back pain after doing sit-ups on a rock and lifting heavy materials. He was initially diagnosed with muscle spasms but later diagnosed with lumbosacral strain. He was given three consecutive seven-day physical profiles as a result of his low back disability. In June 1983 records, his treatment providers noted that his low back disability had improved. As a result of missing various training due to his physical profiles, as well as suspicions that he was malingering to avoid training and concerns that he had a poor attitude towards military service, he was discharged in July 1983. At his October 2016 hearing, the Veteran testified that he continued receiving treatment for his low back following his discharge from service. He also submitted lay statements from family members indicating that he continued receiving treatment for his low back following his discharge. Post-service treatment records refer to additional back injuries in 1998 and 2001. Previously, the Board remanded the Veteran's claim for service connection for a low back disability to obtain an addendum medical opinion. At that time, the Board noted that, although a VA examiner had opined in October 2015 that his low back disability was less likely than not related to his service, the VA examiner's opinion had been conclusory. As such, remand was necessary to obtain an addendum opinion with respect to the etiology of the low back disability. In August 2019, the Veteran underwent another VA examination with respect to his low back disability, in accordance with the Board's remand directives. Like the October 2015 VA examiner, the August 2019 VA examiner rendered a negative nexus opinion. The Veteran's representative has challenged both the adequacy of the examination as well as the competence of the VA examiner. With respect to the competence of the VA examiner, the August 2019 VA examination was conducted by a general practice nurse practitioner. The Veteran's representative has argued that the nurse practitioner that performed the July 2019 VA examination was not an appropriate VA examiner because she did not specialize in orthopedics. Even where the adequacy of a VA examination is challenged, however, the Board may assume the competency of any VA medical examiner as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007) (recognizing that nurse practitioners may be competent to conduct an examination if qualified by education, training, and experience). That a general practice nurse practitioner, as opposed to an orthopedic specialist, performed the VA examination does not in and of itself render the August 2019 VA examination inadequate. Unfortunately, however, the opinion rendered by the August 2019 VA examiner was inadequate. To that end, the examiner opined that it was less likely than not that the Veteran's low back disability had been incurred or caused by his in-service injury because during service his condition was "acute only" and there was no chronicity of care. However, the VA examiner failed to explain why his in-service injury was acute and failed to address the Veteran's lay statements, such as his hearing testimony, regarding his treatment for low back problems. An opinion that does not consider all relevant evidence of record, including lay statements, or that is conclusory is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). As such, remand is necessary to obtain a supplemental VA medical opinion that adequately addresses the relevant evidence of record and provides a sufficiently detailed rationale. Additionally, the Board notes that the RO made an inquiry to the Social Security Administration (SSA) in September 2019 to verify the Veteran's Social Security number. This inquiry revealed that the Veteran had a "disability onset date" of October 30, 2002, and had been entitled to SSA benefits since April 2003. To date, however, the RO does not appear to have attempted to obtain any other underlying SSA records, such as statements and medical history regarding the history and symptomatology of his disabilities. Because this evidence could be potentially relevant with respect to the question of the etiology of the Veteran's current low back disability, remand is also necessary to obtain these records. See Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (holding that the duty to assist requires obtaining SSA records of which the Board has notice). 2. Radiculopathy of the bilateral lower extremities Because a decision on the issue of service connection for a low back disability could significantly impact a decision on the issues of service connection for radiculopathy of the bilateral lower extremities, the issues are inextricably intertwined. As such, readjudication of the radiculopathy claims must be deferred until the low back disability claim is readjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1990). Accordingly, the matters are REMANDED for the following action: 1. Obtain relevant federal records regarding the Veteran's disabilities from the SSA and associate them with the claims file. All reasonable attempts should be made to obtain such records. If they cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide such records. 2. Next, obtain and associate with the claims file any outstanding VA treatment records and relevant, outstanding private treatment records relating to the Veteran's claims. 3. Thereafter, obtain an addendum opinion from an appropriate examiner regarding the nature, onset, and etiology of his low back disability. The examiner must review the claims file, including a copy of this Remand, in its entirety and acknowledge such review in the examination report. The examiner is asked to opine as to whether it is at least as likely as not (approximately 50 percent probability or greater) that the Veteran's low back disability had its onset during service or is otherwise related to it. A thorough rationale should be provided for all opinions rendered. The examiner is reminded to consider the Veteran's contentions regarding his in-service back injury, as well as the lay statements he has submitted from others and his October 2016 hearing testimony. All opinions should be based on examination findings, historical records, and medical principles. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.