Citation Nr: 22011335
Decision Date: 02/28/22	Archive Date: 02/28/22

DOCKET NO. 16-58 119
DATE: February 28, 2022

REMANDED

Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to service-connected lumbar spine disability, is remanded.

Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 1966 to January 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  The matter was previously remanded by the Board in November 2018 and November 2021 decisions for additional development and has now returned to the Board for further appellate review.

1. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to service-connected lumbar disability, is remanded.

While further delay is unfortunate, the Board finds that additional development is necessary before a final determination can be rendered in this matter.

The Veteran received VA examinations regarding his claimed radiculopathy in September and December 2021 pursuant to the November 2018 and 2021 Board remand decisions, respectively.  Both examiners opined that the Veteran's radiculopathy of the right lower extremity was less likely than not incurred in or otherwise etiologically related to active duty service or was proximately due to or the result of the Veteran's service-connected lumbar myositis. Neither examiner, however, addressed the argument asserted by the Veteran's representative in a March 2017 appellate brief that the Veteran's claimed radiculopathy is etiologically related to his employment as a cook while on active duty service, which entailed "a lot of lifting, turning, twisting, and the carrying of heavy loads of foods and handling large cooking hardware."  As this theory of entitlement has not been addressed by the examiners of record, the Board finds that remand is warranted to obtain a new examination regarding the nature and etiology of the Veteran's claimed right lower extremity radiculopathy. 

2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded.

Regarding the claim for a TDIU, this issue is intertwined with the remanded claim. See Harris v. Derwinski,1 Vet. App. 180(1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).

The matters are REMANDED for the following action:

1. Afford the Veteran an examination with a physician of appropriate expertise to determine the nature and etiology of the Veteran's claimed right lower extremity radiculopathy. The examiner should:

Opine whether it is at least as likely as not (50 percent or better probability) that any right lower extremity radiculopathy diagnosed during the pendency of this claim had onset in service or is otherwise related to service. 

The examiner must address whether the Veteran's contention that his active duty work tasks (to include his employment as a cook while on active duty service, which entailed "a lot of lifting, turning, twisting, and the carrying of heavy loads of foods and handling large cooking hardware) may have resulted in his currently diagnosed right lower extremity radiculopathy.  The examiner is reminded that absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. 

A full and complete rationale for all opinions expressed must be provided.

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Gorum, 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.