Citation Nr: A25052167 Decision Date: 06/13/25 Archive Date: 06/13/25 DOCKET NO. 240412-432599 DATE: June 13, 2025 ORDER Entitlement to service connection for a lower extremity disorder to include radiculopathy is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT The Veteran has bilateral lower extremity radiculopathy that is caused by his nonservice-connected lumbar spine disorder and is not related to his service. CONCLUSION OF LAW The criteria for service connection for a lower extremity disorder to include radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3,303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1996 to January 2000 and in the Navy Reserve from February 2000 to November 2003. In the April 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 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. Additional VA treatment records and examinations were uploaded to the claims file after the rating decision on appeal. The Board cannot consider this evidence. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Because the Board is remanding the claim for service connection for a psychiatric disorder, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). Finally, the Veteran has three other pending appeals, all of which he has requested a hearing for, which will be scheduled in the ordinary course of business. Under docket number 231011-382691, he appealed a September 2023 rating decision which found that new and relevant evidence had not been received to readjudicate claims for service connection for hearing loss, left ear, and lumbosacral degenerative disc disease. Under docket number 241028-491236, he appealed a June 2024 rating decision concerning the disability ratings for his hips and service connection for bilateral flat foot (pes planus) and bilateral plantar fasciitis, to include ankle conditions, left wrist, and left shoulder. Under docket number 241202-497240, he appealed a June 2024 rating decision concerning service connection for a cervical spine condition, left and right hands with carpal tunnel syndrome, and right wrist. Entitlement to service connection for a lower extremity disorder to include radiculopathy The Veteran seeks service connection for a lower extremity disorder, to include radiculopathy, manifested by numbness, cramps, and pinprick sensations. His service treatment records are associated with the claims file and appear to be complete. Records are negative for radiculopathy and relevant symptoms, and he denied numbness, tingling, and weakness in his feet in September 1998. His January 1998 examination and October 1999 separation examination show normal spine and lower extremity evaluations, and he denied neuritis and back pain on the corresponding reports of medical history. Although he reported occasional leg cramps on the January 1998 report of medical history, he denied them on his separation report of medical history. The Veteran underwent a VA spine examination in May 2016 and complained of back pain that radiated down his left leg, and he was diagnosed with left lumbar radiculopathy. He underwent a VA peripheral nerves examination in October 2023 and complained of low back pain that radiated to his legs and numbness. He was diagnosed with bilateral lumbar radiculopathy. The October 2023 VA examiner, a neurologist, opined that the Veteran's bilateral lumbar radiculopathies are the result of the mechanical compression of the lumbar roots, mostly caused by the lumbar discectomy he underwent. In March 2024, after another VA peripheral nerves examination, another VA examiner diagnosed him with right lower extremity radiculopathy and determined that his condition did not begin in service and is unrelated to the reported muscle cramps in service. Instead, the examiner related his radiculopathy to his nonservice-connected lumbar spine disorder. After reviewing the evidence, the Board finds that service connection is not warranted for bilateral lower extremity radiculopathy because the weight of the persuasive evidence shows that it is caused by his nonservice-connected lumbar spine disorder. There is no evidence of a lower extremity disorder manifested by numbness, cramps, and pinprick sensation separate from his bilateral lower extremity radiculopathy. The only medical opinions of record are against the claim. Accordingly, service connection is not warranted, and the claim is denied. The Board notes service connection for the back condition was denied in a September 2023 rating decision that the Veteran could have appealed in the April 2024 VA Form 10182 that lead to this appeal, but he did not, so it is not before the Board. His representative filed several other appeal documents including requests for higher-level review on other claims within the appeal period following the September 2023 denial of the back condition, but did not include the back in any of those communications. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder The Board finds that the AOJ committed a pre-decisional error and a remand is necessary. The Veteran seeks service connection for an acquired psychiatric disorder. While the AOJ initially denied depression only, the records show diagnoses of depression and generalized anxiety disorder; accordingly, the Board broadened the claim to encompass any acquired psychiatric disorder. In a September 2023 VA treatment record, he complained of stressful events in service. In an October 2023 VA treatment record, he specified that he was notified about the death of a full unit in service. The Board finds that this evidence was sufficient to trigger VA's duty to provide an examination and the AOJ committed a pre-decisional error in not affording an examination. The Board acknowledges that VA mental health examinations and medical opinions were obtained in July 2024 and September 2024 in connection with later claims. Unfortunately, they were obtained after the rating decision on appeal and the Board cannot consider them. If the AOJ determines that the examination and opinion satisfy the remand instructions, then the AOJ need not obtain another examination and opinion. Finally, the Veteran's 2023 VA medical records also indicate that he was referred for mental health treatment through community care to a Dr. Rivera. Those records are not part of his VA records and must be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran's mental health community care records from CPRS Vista Imaging, San Juan VAMC. If they cannot be retrieved, ask the Veteran to sign a release so the records can be requested directly from the doctor. 2. Schedule the Veteran for a VA mental disorders examination with an appropriate provider. After review of the claims file, the examiner should respond to the following: Is it at least as likely as not that the Veteran's mental disorders are related to service, to include the alleged in-service stressor that he was told an entire unit died in 1998. If the July and September 2024 VA examinations and medical opinions satisfy these instructions, the AOJ need not obtain a new examination and opinion. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lavan 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.