Citation Nr: 22016789 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 16-44 493 DATE: March 23, 2022 REMANDED Entitlement to service connection for residuals of a back injury, to include lumbar spine arthritis, is remanded. Entitlement to service connection for residuals of a neck injury, to include degenerative arthritis of the cervical spine and spinal stenosis, is remanded. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to residuals of neck and back disability, is remanded. Entitlement to service connection for radiculopathy of the left lower extremity, to include as secondary to residuals of neck and back disability, is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to residuals of neck and back disability, is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to residuals of neck and back disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1974 to November 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 and June 2017 rating decisions by the Department of Veterans Affairs (VA), Veterans Benefits Administration (VBA), Regional Office (RO). These matters were previously addressed by the Board in a January 2021 decision, which denied service connection for residuals of a neck and back injury and for radiculopathy of the upper and lower extremities were denied. The Veteran subsequently appealed the decision to the Court of Appeals for Veterans Claims (Court). In a November 2021 Joint Motion for Remand (JMR), the parties moved the Court to vacate the January 2021 Board decision denying service connection for the above disabilities and the matters were remanded back to the Board for further development. 1. Entitlement to service connection for residuals of a back injury is remanded. 2. Entitlement to service connection for residuals of a neck injury is remanded. In this post-remand case, the Veteran seeks service connection for residuals of a back and neck injury. To begin, the Board notes the Veteran has a current diagnosis of cervical spine arthritis and lumbar spine arthritis. The Veteran's service treatment records (STR) indicate the Veteran experienced an in-service accident in which he fell while on board the ship. He reported dull pain to the lower area of his back and weakness and tingling in his legs. Lumbar Spine Disability The Veteran was afforded a VA back examination in July 2016. He reported that, while in service, he slipped on grease and fell directly on his lower back. He reported symptoms of weakness and tingling to his legs. The examiner provided that it is less likely than not (less than 50 percent probability) that his lumbar spine disability was incurred in or caused by his active-duty service. The examiner provided the opinion that the Veteran's reported in-service injury and subsequent disability was acute and there is no documentation, given the 23-year lapse between his active duty and back complaints in 2012, to support a chronic disability. The Veteran attended a second VA back examination in September 2019. He again reported the fall on the ship and his continued pain. The September 2019 examiner provided the opinion that the "coccyx contusion" was at least as likely as not incurred in or caused by his active-duty service, however, the examiner clarified that the Veteran's current disability is not a progression of the coccyx contusion. A private opinion in support of his claim was provided by the Veteran in January 2018. The private physician opined that it was at least as likely as not that the Veteran's lumbar spine disability is directly related to his in-service injury. The physician stated that the Veteran's back disability developed as a result of three different in-service injuries and has increased in severity over the years as evidenced by medical records. Cervical Spine Disability The Veteran underwent a VA examination for his cervical spine disability in September 2019 and was diagnosed with degenerative arthritis of the cervical spine and spinal stenosis. The Veteran reported that he developed intermittent neck pain while on active duty but was unable to recall a specific event or injury. He additionally reported to have intermittent pain in the area but never had symptoms evaluated by medical while on active duty due to resolution of pain with rest and conservative measures. Further, he reports that the pain was intermittent and would come and go with over-use or extreme heavy physical duty and did not become until around 2010-2011. The examiner stated that the Veteran's cervical spine disability was less likely than not (50 percent or less probability) a result of his active-duty military service. In support of this opinion, the examiner stated that the medical evidence is silent for diagnosis of a neck condition/pathology while on active-duty military service. Additionally, the medical evidence is silent while on active duty for concurrent treatments, diagnosis, diagnostics, or continued medical care to establish a pattern of disability in claimed neck. Therefore, the examiner concluded the claimed neck condition was less likely than not incurred or caused by his active-duty service. The January 2018 private physician also opined that it is at least as likely as not that the Veteran's cervical spine disability was related to his in-service injury. The January 2021 Board decision found the VA examiner's opinions regarding the etiology of the Veteran's back and neck disability to be more probative because they reviewed the Veteran's medical records, examined the Veteran, and provided rationale for their opinions. However, the parties to the JMR found that the Board failed to take into consideration lay evidence from the Veteran and medical evidence from the January 2018 private physician where they provided that "not unusual for there to be [a] latent period prior to the increased" severity of disabilities like the Veterans. Furthermore, the JMR provided that the Board failed to discuss the adequacy of the September 2019 VA examiner's opinions given that the examiner did not discuss the Veteran's lay statements regarding continuous symptoms. In light of the above, the Board finds the issues of entitlement to service connection for residuals of a back and neck disability should be remanded in order to provide the Veteran with additional VA examinations and obtain new, adequate etiological opinions. 3. Entitlement to service connection for radiculopathy of the right lower extremity to include as secondary to residuals of neck and back disability is remanded. 4. Entitlement to service connection for radiculopathy of the left lower extremity to include as secondary to residuals of neck and back disability is remanded. 5. Entitlement to service connection for peripheral neuropathy of the right upper extremity to include as secondary to residuals of neck and back disability is remanded. 6. Entitlement to service connection for peripheral neuropathy of the left upper extremity to include as secondary to residuals of neck and back disability is remanded. The Veteran seeks service connection for radiculopathy of the lower extremities and peripheral neuropathy of the upper extremities to include as secondary to the residuals of neck and back injuries. The Veteran contends the radiculopathy and peripheral neuropathy of his extremities is secondary to his currently non-service connected back and neck disabilities. Where the adjudication of one claim or issue could affect the adjudication of another claim or issue, the claims or issues are said to be inextricably intertwined and must be adjudicated together. Harris v. Derwinski, 1 Vet. App. 180 (1991). As a result of the above remand, a decision on those issues could affect the adjudication of the Veteran's claims for secondary service connection for radiculopathy and peripheral neuropathy of his extremities. Therefore, the claims are inextricably intertwined, and remand is warranted. The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate VA examinations to determine the nature and etiology of the Veteran's residuals of a back and neck disability. The reviewing examiner must review the entire claims file to include the Veteran's credible statements regarding a continuity of symptomatology since separating from service. Thereafter, in light of the Veteran's credible statements regarding continuity of symptomatology, the examiner must provide an opinion regarding the follow: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the residuals of his back and neck disability, to include lumbar spine arthritis and degenerative arthritis of the cervical spine and spinal stenosis, was caused by or related to his active-duty service. Thereafter, the examiner should provide an opinion as to the nature and etiology of the Veteran's radiculopathy and peripheral neuropathy of his extremities. Specifically, the examiner should provide an opinion as to the following: (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's radiculopathy of the lower extremities and peripheral neuropathy of the upper extremities are proximately due to or aggravated by his lumbar spine and cervical spine disability. More specifically, the examiner is asked to opine as to whether the Veteran's radiculopathy and/or peripheral neuropathy is aggravated, i.e., worsened beyond its natural progression, by his lumbar spine and/or cervical spine disability. 2. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his private attorney with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.