Citation Nr: A25035652 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 241024-485099 DATE: April 17, 2025 REMANDED Entitlement to service connection for a right lower extremity nerve condition, to include on a secondary basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from October 1997 to May 1998 and in the United States Navy from September 2002 to September 2006. The rating decision on appeal was issued in October 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the October 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the October 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim of entitlement to service connection for a right lower extremity nerve condition, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). As a final preliminary matter, the Board acknowledges the recent precedential decision in Williams regarding 38 C.F.R. § 20.202(c)(2) and deciding AMA appeals before the time to change dockets has ended. See Williams v. McDonough, 37 Vet. App. 305 (2024). Generally, the Board may not decide an appeal before the deadline for requesting an AMA docket switch has elapsed. 38 C.F.R. § 20.202(c)(2) allows claimants to switch AMA dockets by completing and submitting a new Notice of Disagreement within one year from the date the AOJ mails notice of the decision on appeal, or 60 days from when the Board receives the Notice of Disagreement, whichever is later, unless a claimant has already submitted evidence or testimony as described in 38 C.F.R. §§ 20.302 and 20.303. In this case, less than one year has passed since the AOJ mailed notice of the decision on appeal; however, as the Board is remanding the issue for additional development, there is no prejudice to the Veteran in proceeding with the claim on appeal prior to the expiration of the deadline for requesting an AMA docket switch. Entitlement to service connection for a right lower extremity nerve condition, to include on a secondary basis. The Veteran contends that his right lower extremity nerve condition is secondary to his service-connected back disability. See May 2024 VA Form 21-4138, Statement in Support of Claim. Furthermore, subsequent to the rating decision on appeal, the Veteran asserts that his right lower extremity nerve condition is also secondary to his service-connected right knee disability. See October 2024 Notice of Disagreement. Following a review of the claims file, a remand is warranted to correct pre-decisional duty to assist errors. Specifically, the Board finds the June 2024 VA examination and October 2024 medical opinion inadequate for adjudicative purposes. The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). During his peripheral nerve VA examination in June 2024, the Veteran reported pain in his lower back that causes radiating pain, tingling, and numbness on his right side. The VA examiner indicated that the Veteran did not have a peripheral nerve condition or peripheral neuropathy, and no diagnosis was listed in the diagnosis section in the examination report. However, elsewhere in the examination report, the VA examiner noted that the Veteran "has right lower extremity radiculopathy, which is considered out of scope for this exam request. There is no objective evidence to support a diagnosis." In a separate October 2024 medical opinion, the VA examiner opined that the Veteran's right lower extremity nerve condition is less likely than not proximately due to or the result of his service-connected back disability, again noting that there is no diagnosis of the claimed condition, and stating that, therefore, no opinion may be rendered. In support of his claim, in May 2024 the Veteran submitted a private medical opinion. Although the private clinician opined as to whether lumbar spine conditions can result in impaired nerve function generally, the clinician did not provide an opinion regarding the Veteran's right lower extremity nerve condition, or otherwise address the Veteran specifically. Considering the above, the Board finds the June 2024 VA examination and October 2024 medical opinion internally inconsistent and, thus, inadequate. As noted, the VA examiner indicated that there was no diagnosis for the Veteran's claimed condition; however, the examiner also noted that the Veteran has right lower extremity radiculopathy. Accordingly, a remand is necessary to obtain an adequate VA examination and medical opinion to cure the pre-decisional duty to assist errors. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his right lower extremity nerve condition. The entire claims file, including a copy of this Remand, must be made available to the examiner. After reviewing the entire claims file, the examiner should: (a.) Identify/diagnose any right lower extremity nerve condition, to include radiculopathy. In doing so, the examiner must address the Veteran's VA treatment records documenting lumbar radiculopathy and complaints of shooting and radiating pain and tingling. (b.) Opine whether any right lower extremity nerve condition, to include radiculopathy, was at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by the Veteran's service-connected back and/or right knee disability. (c.) Opine whether any right lower extremity nerve condition, to include radiculopathy, was at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) aggravated by the Veteran's service-connected back and/or right knee disability. The examiner is reminded that causation and aggravation are separate and distinct concepts and require separate rationales. (Continued on the next page) The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinions. The examiner must provide a complete rationale for any opinion offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's claims file, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Caitlin B. 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.