Citation Nr: 1317685 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 08-29 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for degenerative change of the cervical spine (a neck disability), as secondary to a back disability. 2. Entitlement to service connection for incontinence, as secondary to a back disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active federal service from October 1969 to March 1970, from June 1985 to January 1986, from February 1986 to September 1988, and from August 1991 to January 1992. He also had service with the Wisconsin Army National Guard from July 1969 October 1969, from March 1970 to June 1985, from September 1988 to August 1991, and from January 1992 to July 2005, which includes periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). From July 2005 to February 2007, the Veteran was assigned to the USAR Control Group, which solely consisted of INACDUTRA. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In October 2010, the Veteran testified in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In November 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC to provide the Veteran with appropriate VCAA notice and to afford him VA examinations of his claimed conditions. The Board again remanded this matter in November 2012 for an addendum to the medical opinion regarding the Veteran's claim of secondary service connection for a neck disability and a new examination regarding the Veteran's claim of incontinence. The case has now been returned to the Board for appellate consideration. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND At the outset, the Board acknowledges the RO's development in this case. Nonetheless, a review of the claims file indicates that additional action is needed. Although the Board sincerely regrets the further delay, another remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In November 20121, the Board remanded the Veteran's neck and incontinence claims to obtain an addendum to the medical opinions of record for his neck disability claim and to afford him with a new VA examination for his incontinence claim. However, the Board finds that the January 2013 addendum and the January 2013 VA examination are inadequate for the reasons set forth below. The Court has held that compliance by the Board or the RO with remand instructions is neither optional nor discretionary and that a remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Also in this regard, once VA undertakes the effort to provide an examination in a service connection claim, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (noting that a medical opinion must describe the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). Neck Disability The Veteran is service-connected for a back injury sustained on a weekend drill during INACDUTRA in April 1996. His medical records show he has had ongoing treatment for lumbar disc herniation since that time. In a November 2012 remand decision, the Board found that the January 2012 VA examiner's opinion regarding whether the Veteran's neck disability could be secondary to his service-connected back disability to be inadequate as it was conclusory. Unfortunately, the opinion offered by the VA doctor who offered an addendum opinion in January 2013 after the November 2012 remand for an addendum opinion is also conclusory and thus inadequate for VA compensation purposes. Although the author of the January 2013 addendum opined that lumbar degenerative disc disease does not lead to cervical disc changes as they are anatomically separate (which provides some rational for this part of the opinion), he failed to adequately discuss why the Veteran's back disability did not aggravate, or increase the severity of, his neck disability. Although he opined that the Veteran's neck disability was less likely than not aggravated by the Veteran's lumbar degenerative disc disease with sciatica, he did not provide an adequate rationale for this finding. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998). Further, the January 2013 addendum indicated the examiner's review of the claims file, but again did not address all of the pertinent evidence in the file. In the addendum, the doctor noted that a report of medical examination from April 2006 did not mention any neck condition and the Veteran's spine exam was normal. He also noted that a magnetic resonance imaging (MRI) of the Veteran's cervical spine in January 2006 (during INACDUTRA) indicated mild disc bulging. The examiner further reviewed a note from March 2003, which documented an acute flare-up of cervical neck pain, and a note from April 2003, which documented neck pain. However, he again did not mention a January 2003 record indicating that the Veteran was assessed with an acute neck strain found to be exacerbated by stress and a May 2006 record indicating the Veteran complained of mild right neck pain and was assessed with chronic neck pain. As such, an addendum medical opinion is necessary to address the issues discussed above. Incontinence The Board's November 2012 remand order requested that the VA examiner "perform all necessary tests and studies and indicate whether the Veteran suffers from any current incontinence and/or BPH." However, the January 2013 examiner explicitly indicated that no imaging studies, diagnostic procedures, or laboratory testing was performed as part of the examination, but stated: "A 2006 note documents a diagnosis of benign prostatic hypertrophy (BPH). This was confirmed by MRI (in the C-file)." However, the Board remains unable to locate a 2006 note documenting a diagnosis of BPH or reference to an MRI of the prostate during that time frame. A March 2006 orthopedic surgery consultation note states only that the Veteran "has urinary frequency and symptoms of BPH," also indicating that the Veteran denied bladder control problems. There is no other treatment records in 2006 discussing incontinence or BPH. The only MRI referenced is of the lumbar spine. Notably, the January 2012 examiner also referenced a 2006 note documenting a diagnosis of BPH, leading to the November 2012 remand that prompted the January 2013 examination. As VA examiners continue to identify a 2006 record diagnosing BPH that is not available in the claims file, and now also reference an MRI that is also not mentioned in the claims file, either the 2006 note diagnosing BPH and the MRI on which the January 2013 examiner relies must be specifically identified and associated with the claims file, or testing must be performed to determine whether the Veteran currently suffers from incontinence and/or BPH. Further, the January 2013 examiner was asked to opine as to the relationship of the Veteran's lumbar back disability to his incontinence but did not do so, deferring to an orthopedic specialist as to that question. Therefore, it remains that no adequate opinion is available to the Board as to that theory of secondary service connection. Thus, an opinion must be sought from an orthopedic specialist or other qualified medical professional as to whether the Veteran's lumbar back disability either caused or aggravated beyond its normal progression the Veteran's incontinence. Accordingly, the case is REMANDED for the following action: 1. Request that a medical professional knowledgeable in orthopedics (an orthopedic specialist, as requested by the last VA examiner) review the claims file and provide an medical opinion regarding the issue of (a) secondary service connection for a neck disability and (b) incontinence. The claims file, to include a copy of this remand, must be made available to, and be reviewed by, the examiner. The examiner should note such review in the examination report (a physical examination of the Veteran is not required, unless the health care provider so indicates). The examiner should render opinions as to the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's neck disability was either (i) caused or (ii) aggravated beyond its natural progression by (increased in severity due to) his military service to include during active service (from October 1969 to March 1970, from June 1985 to January 1986, from February 1986 to September 1988, and from August 1991 to January 1992); during service with the Wisconsin Army National Guard with periods of ACDUTRA and INACDUTRA (July 1969 October 1969, from March 1970 to June 1985, from September 1988 to August 1991, and from January 1992 to July 2005; and during INACDUTRA service in the USAR Control Group (from July 2005 to February 2007)? b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's neck disability was either (i) caused or (ii) aggravated beyond its normal progression by (increased in severity due to) his service-connected back disability? If the opinion is that his service-connected back disability aggravated his neck disability, the examiner should specify, so far as possible, the degree of disability (pathology/impairment) resulting from such aggravation. (c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's incontinence and/or BPH (if any) was either (i) caused or (ii) aggravated beyond its natural progression by (increased in severity due to) his military service to include during active service (from October 1969 to March 1970, from June 1985 to January 1986, from February 1986 to September 1988, and from August 1991 to January 1992); during service with the Wisconsin Army National Guard with periods of ACDUTRA and INACDUTRA (July 1969 October 1969, from March 1970 to June 1985, from September 1988 to August 1991, and from January 1992 to July 2005; and during INACDUTRA service in the USAR Control Group (from July 2005 to February 2007)? (d) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's incontinence and/or BPH (if any) was either (i) caused or (ii) aggravated beyond its normal progression by (increased in severity due to) his service-connected back disability? If the opinion is that his service-connected back disability aggravated his neck disability, the examiner should specify, so far as possible, the degree of disability (pathology/impairment) resulting from such aggravation. In this regard, the examiner is asked to specifically address the significance, if any, of the Veteran's radiculopathy and medications on his incontinence and/or PBH, as suggested by a November 2005 treatment note. The examiner should also address the significance, if any, of the Veteran's reports that he did not have urinary problems until after his back surgery in 1996, as supported by the medical evidence of record. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A complete rationale is required for all opinions rendered. The opinion should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 2. Then, the RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. In this regard, in light of the prior remands, the RO should ensure that the detailed questions asked by the Board have been addressed by the examiner. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 4.2 (2011). 3. When the development requested has been completed, and the RO has ensured compliance with the requested actions, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the appellant and his representative, if any, should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). _________________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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).