Citation Nr: 22018341 Decision Date: 03/29/22 Archive Date: 03/28/22 DOCKET NO. 18-30 777 DATE: March 29, 2022 REMANDED Entitlement to service connection for a bilateral wrist condition is remanded. Entitlement to service connection for a bilateral nerve condition of the lower extremities, to include as secondary to service-connected back condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 2008 to January 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2017 and June 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2021. A transcript of the hearing is associated with the claims file. 1. Entitlement to service connection for a bilateral wrist condition is remanded. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A VA examiner must consider the Veteran's lay statements regarding the incurrence of a disorder, and his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). A Veteran is competent to report symptoms that are capable of lay witness observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). When the "sole premise" of a medical conclusion is the "lack of notation or treatment" of claimed injuries or symptoms, it is inadequate for rating purposes. Dalton, 21 Vet. App. 23, 39; see Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Veteran was afforded a VA examination in March 2017. The Board notes there are two opinions from the same examiner. In the first, the examiner noted the Veteran's medical records were not available for review, and thus could not provide rationale for her opinion. In April 2017, she provided an addendum opinion based on a full review of the record. The examiner opined the Veteran's wrist conditions were less likely than not related to service. Although she noted the Veteran's contentions that his wrist pain started in service and was due to loading armor, the examiner solely relied on the lack of documented treatment for wrist pain prior to 2016. The Board notes that the absence of documented treatment or complaints in service or thereafter is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Additionally, the Veteran provided testimony at his October 2021 hearing that further explains his contention that his wrist pain began in service. Thus, a remand is necessary to obtain an addendum opinion that properly considers and address all of the Veteran's lay statements and does not rely on a lack of documented treatment or complaints. 2. Entitlement to service connection for a bilateral nerve condition of the lower extremities, to include as secondary to service-connected back condition is remanded. VA treatment records and VA examinations for the Veteran's back condition do not show a diagnosis of any nerve condition of the lower extremities. However, VA treatment records from a physical therapy visit for his lower back in 2018 indicate the Veteran had numbness and tingling down both legs. Additionally, at his October 2021 hearing, the Veteran testified that he has tightness and pain in the back of his legs radiating from his back. He further stated that he has back pain that goes all the way down his legs when sitting, standing, walking, and weightbearing. The Veteran reported being referred to physical therapy because of swelling in the joints, stiffness, and radiating pain down his legs. The Board recognizes the Court's ruling in Saunders v. Wilkie, 886 F.3d 1356 (2018), that found "pain alone can serve as a functional impairment and therefore, qualify as a disability." Service treatment records are silent for any nerve pain related to his legs. However, at the October 2021 hearing, the Veteran stated he experienced numbness. "So, when I was a gunner, we would sit in the strap. So, the strap literally just goes underneath your thighs, and that strap, you know, once you're sitting there for a while, you kind of lose sensation of your toes, you know, it kind of numbs you, but I mean you have to sit there." Additionally, the Veteran contends his leg condition is related to his service-connected back condition. As indicated above, the Veteran reports pain and numbness radiating down his legs from his back. The Veteran's lay statements regarding his numbness in service indicates his current nerve condition of the lower extremities may have been caused by or occurred during service. Additionally, the Veteran's statements regarding his pain radiating from his back indicate the Veteran's condition may have been caused or aggravated by his service-connected back condition. However, the Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether the Veteran's claimed nerve condition of the lower extremities was related to service, or caused or aggravated by his service-connected back condition. The Board finds that the Veteran should be afforded a VA examination with respect to his claim for entitlement to service connection for a bilateral nerve condition of the lower extremities. Under McLendon, VA is obligated to provide an examination when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Additionally, evidence indicates that there may be outstanding relevant VA treatment records. At the October 2021 hearing, the Veteran reported that he was treated at the Sepulveda VA Medical Center (VAMC) in September 2021 and received an MRI for his lower back and leg. He additionally stated he was referred to physical therapy and had his first appointment at late September/early October 2021. The record does not contain any treatment records after December 2020. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. Thus, a remand is necessary to obtain outstanding VA treatment records and a VA examination. The matters are REMANDED for the following action: 1. Obtain all VA treatment records not currently associated with the claims file, to include all VA treatment records after December 2020, MRI or other imaging results from September 2021 taken at Sepulveda VAMC, and physical therapy records. 2. Thereafter, obtain a VA examination for the Veteran's claimed bilateral nerve condition of the lower extremities. The entire file should be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed bilateral nerve condition of the lower extremities: a) had its clinical onset during active service or is related to any in-service disease, event, or injury, to include his report of numbness when he would "sit in the strap" as a gunner. b) was caused by his service-connected back condition. c) underwent an incremental increase (aggravated), regardless of permanence, by his service-connected back condition. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. In addressing the questions (b) and (c), please note that there is no temporal requirement that the primary condition (service-connected back condition) be service-connected, or even diagnosed, at the time the secondary condition (nerve condition of the lower extremities) was incurred or developed, and reliance on this fact will render any opinion inadequate. The examiner must consider and specifically address all of the Veteran's and his wife's lay statements, to include the testimony from his October 2021 hearing regarding his numbness in service, and current symptoms of pain and numbness of his lower extremities. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner should not rely solely on the lack of in-service or post-service treatment. Specifically, the examiner should address the factors that affect the Veteran rather than list them. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. See explanation above for finding the March and April 2017 VA examinations inadequate. 4. Obtain an addendum opinion for the Veteran's bilateral wrist condition. The entire file should be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral wrist condition had its clinical onset during active service or is related to any in-service disease, event, or injury, to include his military occupation specialty and relation through continuity of symptomatology. The examiner must consider and specifically address all of the Veteran's and his wife's lay statements, to include the statements in May 2017 correspondence, and his October 2021 hearing that his military occupation specialty required him to carry heavy equipment and "throw himself on the floor" landing on his wrists, that he did not seek treatment because of the motto, "suck it up and drive on," and that he self-treated his wrist pain during and since service. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner should not rely solely on the lack of in-service or post-service treatment. Specifically, the examiner should address the factors that affect the Veteran rather than list them. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.