Citation Nr: 21039886 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 10-38 087 DATE: July 1, 2021 REMANDED Service connection for right upper extremity radiculopathy is remanded. Service connection for left upper extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1965 to June 1967, including foreign service in Germany. He testified during a December 2013 travel board hearing. A transcript of this proceeding has been associated with the record. These appeals were most recently remanded by the Board in January 2018 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Procedurally, the Veteran is separately pursuing service connection for right hip and bilateral knee disabilities under docket number 14-34 814A. Development for this appeal stream is ongoing, such that these claims will be adjudicated in a future Board decision should such action be required. Additionally, the Veteran is in receipt of the maximum combined evaluation, effective May 15, 2018. Thus, any subsequent awards of service connection or higher ratings will bear no impact on his compensation payments. As to the instant matters, these appeals were remanded in January 2018 to obtain a VA examination. In part, the examiner was instructed to provide an opinion as to whether the claimed disabilities were "caused or permanently aggravated" by the Veteran's service-connected back disability. However, in Ward v. Wilkie, 31 Vet. App. 233 (2019), the Court of Appeals for Veterans Claims (Court) found that compensation for aggravation under 38 C.F.R. § 3.310 is warranted for any incremental increase in disability, not just permanent aggravation. Accordingly, an addendum opinion contemplative of the appropriate legal standard is required. Additionally, the Veteran submitted a May 2019 lay statement which provides greater detail as to the theory of direct service connection he is pursuing. On remand, the examiner must address this specific contention. Finally, the January 2018 remand instructed the VA examiner to explicitly address a July 2015 VA treatment record showing "chronic lumbar pain, [bilateral upper and lower extremities with] tingling, neuropathy." The resulting April 2018 VA examination did not address this treatment record, and a January 2019 addendum indicates that there were no treatment records from July 2015 found in the Veteran's claims file. However, the Board's current review of the claims file easily identified the VA treatment record in question, entered in July 2015 by S.W. at the Lee County VA Medical Center (VAMC). Thus, this record must be addressed in the requested addendum opinion. The matters are REMANDED for the following action: Obtain an addendum opinion addressing the questions below. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred. In particular, the examiner must address the following: (1) Is it at least as likely as not that the Veteran's bilateral upper extremity radiculopathies began in service, were caused by service, or are otherwise related to service? Here, the examiner must explicitly address the Veteran's contention that these disabilities are related to an April 1967 in-service spine injury incurred while jumping from the back of a truck. See May 2019 lay statement. (2) Is it at least as likely as not that the Veteran's bilateral upper extremity radiculopathies are caused or aggravated by his service-connected back disability or the treatment thereof? The examiner is advised that aggravation is found by any incremental increase in disability, and does NOT require permanent aggravation. The examiner must also address a July 2015 VA treatment record from the Lee County VAMC which documents chronic lumbar pain with neuropathy, and any subsequent notations of such. The referenced treatment record may be found in the Veteran's electronic claims file. In formulating the opinions, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran was competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.