Citation Nr: 1302885 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 08-29 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for thoracolumbar spine disability. 2. Entitlement to service connection for cervical spine disability. 3. Entitlement to service connection for left knee disability. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from January 1979 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied the Veteran's claims. In January 2011, the Veteran presented sworn testimony during a personal hearing in San Diego, California, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In a June 2011 Board decision, the claims were remanded for further development. In September 2012, the Veteran submitted additional evidence directly to the Board. In December 2012, he also submitted a written waiver of local consideration of this evidence. This waiver is contained in the VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c) (2012). The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Veteran asserts entitlement to service connection for thoracolumbar and cervical spine and left knee disabilities, which he contends are due to his military service. Specifically, he asserts that he injured his back while carrying a fellow soldier during basic training and has experienced back and neck pain ever since. See, e.g., the January 2011 Board hearing transcript. As to his left knee, the Veteran claims to have injured his knee while playing basketball during his active duty service. See the Veteran's claim dated March 2007. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With respect to the thoracolumbar and cervical spine claims, service treatment records (STRs) showed that the Veteran complained of back pain in April 1980 and was diagnosed with a "muscle pain upper back." Additionally, a STR dated February 1981 documented the Veteran's complaint of neck stiffness for twelve days, which time he was diagnosed with folliculitis with secondary adenopathy as a result of a pustule lesion on his right occipital region. His July 1983 service separation examination and report of medical history were absent any complaint of or treatment for continuing back or neck complaints. A post-service chiropractic treatment record dated March 1984 showed that the Veteran complained of back and neck pain in October 1983; he was diagnosed with lumbosacral sprain/strain and thoracolumbar sprain/strain. With respect to the Veteran's neck, the treating chiropractor noted that the neck was within normal limits upon physical examination; the chiropractor did not diagnose a neck disability at that time. See the March 1984 private treatment record. A review of the record shows that the Veteran was injured in a motor vehicle accident in March 1991 at which time he complained of back and neck pain. The Veteran was diagnosed with muscle spasms of the cervical and lumbosacral spine secondary to the motor vehicle accident; a notation of "[n]o previous history of back and neck pain" was indicated in the treatment records. See the private treatment record dated March 1991. A review of the record shows that the Veteran was treated for low back symptomatology dating from the March 1991 motor vehicle accident. See the private treatment records dated October 1992 and June 1994. Magnetic resonance imaging (MRI) performed in February 1996 documented "disc herniation at L4-5 with significant compromise of the spinal canal and lateral recess." Notably, a March 1997 private treatment record indicated that the Veteran had "a history of a low back injury in 1984 reportedly on the job." Additionally, a private treatment record dated in October 1997 indicated that the Veteran had a "three year history of low back pain secondary to trauma, blunt, while working as an employee at a Federal prison." Private treatment records dated in February 2003 show that the Veteran is currently diagnosed with degenerative disc disease (DDD) of the lumbosacral spine with sciatica and a history of L4-5 disc herniation. With respect to the cervical spine, the Veteran's complaints of neck pain are documented in February 2003 private treatment records. In a January 2011 report, Dr. K.T.W., the Veteran's chiropractor, indicated that the Veteran experiences pain and limitation of motion in the lumbosacral and cervical spine. In a December 2007 statement, Dr. K.A.C. reported that the Veteran "has had treatment for his chronic low back pain since 1982 when he was injured carrying another soldier. His L4-5 and L5-S1 disc herniations may have been resultant to the stress of carrying another soldier for a prolonged distance in the military." Similarly, in reports dated January 2011 and February 2011, Dr. K.T.W. documented the Veteran's complaints of lumbosacral and cervical spine pain with limitation of motion and opined that "[i]t is my professional opinion based on the accident history as presented, patient history and examination findings that the patient's condition is a direct result of the injury of issue." Critically, the positive nexus opinion rendered by Dr. K.A.C. is admittedly speculative. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record). Additionally, Dr. K.A.C. and Dr. K.T.W. failed to provide thorough explanations to support the conclusions set forth in their statements. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (the Court has held that examiners must support their conclusions with analysis and clinical data); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence). In particular, neither Dr. K.A.C. nor Dr. K.T.W. addressed the significance, if any, of the July 1983 service separation examination and report of medical history, which were absent any indication of continuing back or neck symptomatology. Additionally, Dr. K.A.C. and Dr. K.T.W. did not address the Veteran's March 1991 post-service motor vehicle accident or his documented work injuries. There is no other competent evidence of medical nexus currently of record with respect to the claimed thoracolumbar and cervical spine disabilities. Thus, the thoracolumbar and cervical spine claims present certain medical questions concerning diagnosis and nexus, which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions must be addressed by an appropriately qualified physician. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Accordingly, upon remand, the Veteran should be afforded a VA examination to address the outstanding questions of diagnosis and nexus pertaining to the thoracolumbar and cervical spine claims. With respect to the left knee claim, a STR dated March 1982 documented the Veteran's complaint of left knee pain "for the past three weeks with swelling during basketball game or running a mile." He was diagnosed with a partial tear (minor) of the quadriceps. The July 1983 service separation examination and report of medical history were absent any diagnosis or complaint of left knee symptomatology. Post-service treatment records revealed complaints of left knee swelling in December 1991 at which time the Veteran was diagnosed with chondromalacia. A January 1992 notation documented a diagnosis of left knee arthritis, confirmed by MRI. X-rays dated in March 2004 confirmed that "very mild degenerative changes are present in the patellofemoral joints, bilaterally." Despite evidence of a current disability and in-service treatment for left knee complaints, the Veteran has not been afforded a VA examination as to his claim. Therefore, as an opinion concerning the etiology of the Veteran's currently diagnosed left knee disability is not of record, the Board concludes that a VA examination is necessary to determine whether the Veteran's left knee disability is related to his military service. See Charles, supra; see also 38 C.F.R. § 3.159(c)(4); see also Colvin, supra. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure any records of outstanding treatment that the Veteran has recently received. All such available documents should be associated with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed thoracolumbar and cervical spine as well as left knee disabilities. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner should elicit from the Veteran a detailed account of any instances of in-service and post-military left knee, back, and neck symptomatology. The examiner should address the Veteran's currently diagnosed thoracolumbar spine and left knee disabilities, and either diagnose or rule out a disability of the cervical spine. After reviewing the file, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any current left knee, thoracolumbar, and cervical spine disabilities had their clinical onset during the Veteran's active duty or are otherwise related to such service. In answering these questions, the examiner should address the Veteran's in-service back, neck, and left knee complaints. The examiner should also address the Veteran's post-service medical history including the October 1983 chiropractor records, the March 1991 motor vehicle accident, and the March 1997 and October 1997 private treatment records documenting the Veteran's jobsite injuries. The examiner should also address the Veteran's assertions of continuity of symptomatology dating from his military discharge. The examiner should provide a complete rationale for any opinion given, including discussion of evidence contrary to the opinion rendered. If the examiner is unable to render an opinion without resorting to mere speculation, he/she must so state and provide reasoning as to why an opinion cannot be given and whether any additional evidence or testing would assist in providing such opinion. 3. Thereafter, readjudicate the claims remaining on appeal. If a benefits sought remain denied, a supplemental statement of the case should be issued to the Veteran and his representative, and an appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (the Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).