Citation Nr: 22017280 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 14-15 263A DATE: March 24, 2022 REMANDED Entitlement to service connection for a left lower extremity neurological disability is remanded. Entitlement to service connection for a right lower extremity neurological disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to January 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that these matters have been remanded several times previously and regrets the delay inherent with another remand. However, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 1. Entitlement to service connection for a left lower extremity neurological disability. 2. Entitlement to service connection for a right lower extremity neurological disability. The Veteran contends that he suffered an injury when he fell off a tank while in service, and that he has had numbness and tingling in his legs ever since. As an initial matter, the August 2021 Board remand determined that the May 2021 VA examiner's opinion was inadequate because the examiner failed to provide adequate rationale regarding the Veteran's history of lower extremity symptoms and treatment for such disorder. Moreover, the examiner did not address the Veteran's report of symptoms since his separation for service. As such, the remand directed that a VA addendum opinion be obtained to determine the nature and etiology of the Veteran's bilateral lower extremity neurological condition. In accordance with the August 2021 remand, VA obtained an addendum opinion in December 2021. At such time, the examiner concluded that it was less likely than not that the Veteran's bilateral lower extremity neurological condition incurred in or was caused by his military service. As rationale, the examiner explained that the Veteran was a diabetic who has peripheral neuropathy and S1 radiculopathy. The examiner further stated that the Veteran's service treatment records and medical records did not show any evidence of complaints of back pain, an injury or a condition during his active duty military service. The examiner also explained that there were no complaints of symptoms of peripheral neuropathy or lumbar radiculopathy during his military service or in the first years after his separation from service. The examiner concluded that the records show that the Veteran had a work related accident with a back injury when he fell down some stairs in 1991, which was at least as likely as not the cause of the lumbar radiculopathy. However, it appears that the examiner's opinion was based on the inaccurate factual premise that Veteran service treatment records and medical records did not show any evidence of complaints of back pain. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In this regard, the service treatment records show that the Veteran was treated for a back injury in October 1969, which corresponds with the time the Veteran states he was injured, and he maintains that he has had lower extremity symptoms since. Moreover, it does not appear that the examiner considered the Veteran's reports of lower extremity symptoms since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). Consequently, the Board finds that an addendum opinion is necessary to decide this claim. The matters are REMANDED for the following action: 1. Return the file, including a copy of this remand, to an appropriate clinician, preferably a neurologist (if available) for an addendum opinion as to the nature and etiology of the Veteran's claimed bilateral lower extremity neurological condition. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should review the record and then address the following inquiry: (A) Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's bilateral lower extremity neurological condition had its onset in, or is otherwise related to any injury or event, during service, to include his back injury in October 1969? ***The examiner must address the Veteran's statements and history regarding the onset and continuity of the claimed bilateral lower extremity neurological condition. In offering an opinion, the examiner must acknowledge that the Veteran is competent to his in-service symptoms and the continuity of his symptomatology he perceives since service. The rationale for any opinion should be provided. The examiner is advised that the sole basis for a negative opinion cannot be the fact that the Veteran's service treatment records are negative for complaints, treatment, or diagnoses referable to the claimed disorder. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, 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.