Citation Nr: 22043563 Decision Date: 08/01/22 Archive Date: 08/01/22 DOCKET NO. 16-55 975 DATE: August 1, 2022 REMANDED Entitlement to a separate compensable ratings for neurologic impairments, including urination difficulties and hand tremors, associated with the service-connected lumbar spine intervertebral disc syndrome and spinal stenosis is remanded. REASONS FOR REMAND The Veteran had active service in the United States Navy from January 1986 to October 1987. During the pendency of the Veteran's appeal for an increased disability rating for his spinal stenosis and intervertebral disc syndrome (previously rated as a chronic musculoligamentous strain), he raised the question of entitlement to separate compensable ratings for neurological impairments, to include urination difficulties and hand tremors, due to his service-connected back disabilities. In December 2021, the Board of Veterans' Appeals (Board) remanded this issue to the Department of Veterans Affairs' (VA) Veterans Benefits Administration (VBA) for additional evidentiary development, to include obtaining additional treatment records and to provide a new VA examination to the Veteran. Unfortunately, the Board finds that VBA has not substantially complied with these Remand directives and the issue must be returned for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a separate evaluation for neurologic abnormalities associated with lumbar spine disability is remanded. In the December 2021 Board Remand, VBA was directed to "Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated any upper extremity neurologic and urinary disabilities." Specifically, VBA was directed to make two requests unless it was clear after the first request that a second request would be futile. To that end, VBA made one request on December 15, 2021. However, this was the only request of record that was made to the Veteran and there is no indication that an additional request would be futile. Indeed, the Veteran responded to separate unrelated correspondence after the first request was made. Accordingly, a remand is required so that an additional request can be made. Further, the Board finds the March 2022 opinion to be inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The March 2002 VA examiner failed to provide an explanation as to why the claimed neurological impairments were not related to his service-connected back disabilities. Further, the opinion failed to address the question of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that when adjudicating a secondary service-connection issue, it is clear error for the Board to rely on an opinion that addressed only causation). Accordingly, a remand is required for an addendum opinion. The Board notes that the U.S. Court of Appeals for Veterans Claims issued a precedential decision in Ward v. Wilkie, 31 Vet. App. 233 (2019), holding that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). Finally, the previous examiner was asked to opine if it was "at least as likely as not (a 50 percent or greater probability)" that the Veteran's alleged disabilities were secondary to his service-connected low back disabilities. This language found in the previous remand entitled the Veteran to the benefit of the doubt if the evidence was in equipoise. Following direction from the United States Court of Appeals for the Federal Circuit in Lynch v. McDonough,21 F.4th 776 (Fed. Cir. 2021), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance - i.e. nearly equal - and does not require the evidence to be in exact equipoise. See id. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated any upper extremity neurologic and urinary disabilities. 2. Return the Veteran's claims file to the March 2022 VA examiner, if available, for an addendum opinion. This opinion should provide a fully supported and thoroughly explained rationale as to why the claimed neurological impairments are not the result of the Veteran's service-connected low back disabilities. Further, the examiner must address whether the Veteran's neurological abnormalities are aggravated by his service-connected low back disability. The need for another clinical evaluation is left to the discretion of the medical professional offering the addendum opinion. Opine as to whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's neurological abnormalities were caused or aggravated by his service-connected lumbar disability. The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. K. A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.