Citation Nr: 1339192 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 01-03 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a back disorder with neck, right arm, and chest problems. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from January 1985 to April 1985. He also had additional service in the Army National Guard, to specifically include active duty for training from June 26, 1998, to July 4, 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2000 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Jackson, Mississippi, which denied service connection for a back condition with neck, right arm, and upper chest area problems. In April 2005, the Veteran testified at a personal hearing over which an Acting Veterans Law Judge of the Board presided while at the RO. A transcript of the hearing has been associated with the Veteran's claims file. The Veterans Law Judge that conducted that hearing is no longer employed by the Board. The law requires that a Veterans Law Judge that conducts a hearing on appeal must participate in any decision made on appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.7007 (2013). Therefore, in March 2013, the Board notified the Veteran of the fact that the Veterans Law Judge that conducted that hearing was no longer employed by the Board, and that he had the opportunity to testify at another hearing. See 38 C.F.R. § 20.717 (2013). In correspondence dated later in March 2013, the Veteran's representative notified the Board that he did not wish to appear at another hearing before a Veterans Law Judge of the Board. This matter was previously before the Board in August 2007 and August 2008 at which time it was remanded for additional development. Thereafter, in a March 2009 Board decision, service connection for a back disorder with neck, right arm, and chest problems was denied. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2011, the Court issued a Memorandum Decision, setting aside the Board's March 2009 decision and remanding the issue of service connection for a back disorder with neck, right arm, and chest problems to the Board. The appeal was returned to the Board in February 2012, wherein it was remanded for additional development consistent with the February 2011 Memorandum Decision. It is now returned to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it 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. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 &); 38 C.F.R. § 3.159(c), (d) (2013). By way of history, the Veteran contends that he has a back disability as a result of his period of active service. He reports sustaining an injury to his back in June 1998, when he fell while dismounting from a Hum-V. He asserts that he felt his back twist and pop and that his current back disorder with neck, right arm, and chest problems, is related to that in-service injury. He also reports a January 1999 injury to his back as a result of a motor vehicle accident, but denies having sustained any additional injuries at that time. Several lay statements have been submitted in support of the Veteran's claim. In pertinent part, these statements report that he injured his back in June 1998 when dismounting from a Hum-V and stepping into a hole. The Veteran's service treatment records reveal that he sustained an injury to his back in June 1998, when he jumped out of a truck. He presented for treatment with complaints, including back pain. Subsequent treatment records diagnosed the Veteran as having pulled a muscle in his back. In pertinent part, a July 1998 record attributed the Veteran's complaints of low back pain to acute muscular/ischemic back pain. A July 1998 magnetic resonance imaging (MRI) study of the lumbar spine revealed no evidence of a herniated disc or foraminal narrowing. The examiner did note that the Veteran had a congenitally narrow canal at the L3-4 level, which may have predisposed him to some stretch injury to his lower lumbar and sacral nerve roots, but did not appear significant enough to have caused ongoing nerve damage. At that time, the Veteran was diagnosed as having ligamentous low back pain, and possible neuropraxia from stretching injury. An October 1998 referral for civilian medical care report shows that the Veteran was given an provisional diagnosis of inflamed left sacroiliac joint. An associated physical therapy consultation report, also dated in October 1998, shows that the Veteran was given an assessment of ERS left L5/S1, resolved; and left on right sacral torsion, resolved. A medical consultation report dated in November 1998 shows that physical therapy failed to improve his symptoms, and he was given a provisional diagnosis of low back pain. Radiological evaluation revealed no significant abnormality. In January 1999, the Veteran sustained an additional injury to his back when his dump truck turned over. A June 1999 report reveals that a doctor's opinion was considered and that no further treatment for a back or neck injury was approved because the injury sustained in January 1999 was not in the Line of Duty (LOD) and was unrelated to the June 1998 back injury. In October 1999, the Veteran was diagnosed as having cervical and lumbar sprain with right sciatica in the L5 distribution and right shoulder bursitis/impingement. He was diagnosed with having neck, low back and right shoulder pain status post sprain in November 1999. The Veteran also exhibited sciatic symptoms on the right side. The examiner noted that the Veteran had a history of a normal right leg electrodiagnostic study in 1998. Also in November 1999, examination revealed negative clear neural tension signs with slump test. The examiner noted increased illness behaviors, but there were no sensory, strength, or reflex deficits in the lower extremities. An electrodiagnostic study of the right lower extremity was again completely normal. The assessment included low back pain. In December 1999, the Veteran again exhibited increased illness behaviors, though he remained the same subjectively and there were no significant objective findings with examination or diagnostic testing. The examiner recommended that the Veteran return to work on full duty capacity. The following month, cervical and lumbar strains with sciatica complaints and nonanatomic deficits and complaints were reported. The examiner noted that the Veteran had had an extensive workup including cervicothoracic and lumbar MRI scan with electrodiagnostic testing and that he had tried to reassure him that there was no surgical problem and no specific identifiable injury, other than perhaps some soft tissue injury. A VA spine examination report dated in March 2000 shows that the Veteran reported that he had been experiencing intermittent numbness from his right ear to his right toes since the June 1998 accident. He also reported that he been in an accident in January 1999 due to his leg "going numb." X-rays of the cervical spine revealed small osteophytes at C4-5 and C5-6 with slight narrowing of the C5-6 disc. X-rays of the lumbar spine revealed no evidence of fracture, dislocation, narrowing of the disc or osteophyte formation. Following physical examination, the impression was degenerative disc disease of the cervical spine. The examiner reported that he could find no objective evidence of organic pathology on physical and X-ray examination to explain the Veteran's low back complaints. The examiner further noted that the Veteran had no neurologic deficit to suggest nerve root involvement in his neck causing the numbness in the right side of his chest or the numbness and paralysis in the right arm. A March 2001 VA addendum report reveals that the Veteran wanted a statement about the causality of the fall from the truck to his current problem. The chief of neurology at the VA Medical Center reported that he certainly had cervical spine problems and a myelopathy related. The examiner found that it was likely traumatic in origin and per the Veteran's history, likely to have occurred when he fell from the truck in service. An August 2001 record from the Mississippi Army National Guard to the Veteran reveals that the VA examiner who provided the March 2001 opinion had not been informed of the January 1999 civilian truck accident, and that the Veteran's failure to mention this incident would have a significant impact on his findings. A VA spine examination report dated in January 2004 shows that the VA examiner documented that the Veteran sustained a back injury in June 1998 when he jumped off the back of a Hum-V, landed in a rut, and heard his back pop. The examiner reported that at the time of the accident, X-rays and a MRI were negative. The January 1999 accident during which the Veteran sustained an additional injury to his back was also noted. At the time of examination, the Veteran's subjective complaints included pain in the lower back that radiated down the right lower extremity to his foot with numbness in both legs. The Veteran also had complaints of neck pain with tingling in both hands and the right side of his chest. The examiner noted that the Veteran described the numbness and tingling as paralysis. X-rays of the cervical spine revealed small osteophytes at C4-5 and C5-6 but no significant narrowing of disc space. X-rays of the lumbar spine revealed no fracture, dislocation, narrowing of the discs, osteophyte formation or subchondral sclerosis. Following physical examination, the impression was mild degenerative disc disease of the cervical spine; no objective evidence of organic pathology of the lumbar spine on physical examination, X-ray or MRI to explain the Veteran's symptoms. The examiner reported that aside from the minimal changes in the Veteran's cervical spine, no one had found any organic pathology to explain his pain and numbness, which he described as "paralysis." The examiner was unable to separate which symptoms resulted from the 1998 accident and which resulted from the 1999 accident since he could not find any cause for the symptoms in the first place. A VA miscellaneous neurological disorders examination report dated in November 2007 shows that following a review of the Veteran's claims file, the examiner referenced the June 1998 back injury and the fact that the Veteran had complained of back pain ever since, but added that there had been no mention of neck complaints in the service treatment records. The January 1999 accident in which the Veteran rolled his dump truck was also noted, as were the Veteran's complaints of back and neck problems since that time. The examiner reported that repeated evaluations between June 1998 and February 2000 had shown no significant spine or disc disease, including normal electrodiagnostics and imaging of the cervical and lumbar spine. The repeated diagnosis was absence of neurological disease with symptoms most likely due to soft tissue strain/injury. In January 2003, the Veteran's cervical MRI showed several herniated discs, while his lumbar spine showed age-related disc bulging. The Veteran reported pain in his neck, low back, right arm and leg, as well as numbness in his right foot and arm and weakness in his legs. Following physical examination, the examiner reported no findings or evidence of lumbar spine or disc disease. The examiner further noted that, clearly, there was nothing related to his service. The chart was said to be rife with diagnoses of lumbar (and cervical) strain. The examiner explained that strain was a soft tissue injury, and there was no medical evidence that strain causes, predisposes to, or accelerates the development of spine or disc disease. Hence, anything that may have occurred in service was unrelated to the Veteran's present spine or disc disease. The Veteran did have cervical spondylosis and disc disease. This was said to be unrelated to any possible strain injury that may have been incurred in service. Furthermore, there was no medical evidence in the Veteran's records to suggest that he had any neck complaints during service and his cervical spine disease appeared subsequently (by several years). In August 2008, the Board found the November 2007 VA examiner's opinion to be contradictory and remanded the claim for a clarified opinion regarding whether the cervical and lumbar strain noted on examination was at least as likely as not acquired in June 1998 or in January 1999. An addendum opinion was provided in October 2008. The VA examiner reported that the Veteran had no findings or evidence of lumbar disc disease. Hence, his in-service back strain injury was unlikely to have anything to do with his present complaints. The examiner further noted that the Veteran had no neck complaints in service and that neck complaints began after the civilian truck accident. The Veteran was said to presently have findings of cervical spine disease; however, it was unlikely that his service injury was related to his current cervical spine complaints. The examiner found that it was likely that the Veteran's cervical disease was related to his non-service injury. In its February 2012 Remand, the Board determined that in finding that the Veteran did not have lumbar or cervical strain at that time, the October 2008 VA examiner had not provided an opinion as to the Veteran's diagnoses of lumbar and cervical strain over the course of the appeals period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim."). Further, the Board determined that the VA examiner had not provided an adequate rationale for his conclusion. Accordingly, the issue was remanded for another addendum opinion specifically addressing the likelihood that the Veteran's diagnosed lumbar strain and/or cervical strain was caused or aggravated (permanently increased in severity beyond the natural progress of the disorder) by his jumping out of a vehicle in 1998 while on active duty for training. The VA examiner was also asked to comment on the 1999 post-service truck accident. In an addendum dated in September 2012, the VA examiner referenced the Veteran's service treatment records which had shown that he had sustained a back injury in June 1998 when he had jumped out of a vehicle while on active duty. No radiologic abnormalities were said to have been identified in service. The examiner indicated that there was no mention of neck complaints in the service treatment records. The Veteran was said to have rolled a dump truck in January 1999 (post service) and since that time complained of back and neck problems. Repeated evaluations between June 1998 and February 2000 were said to have shown no significant spine or disc disease, including normal electrodiagnostics and imaging of cervical and lumbar spine. The repeated diagnoses were said to be the absence of neurologic disease with symptoms most likely due to soft tissue strain/injury. The January 2003 cervical MRI study had shown several herniated discs while lumbar spine showed age-related disc bulging. In 4/19 (?) plane films of the lumbar spine were normal and cervical spine had C5-6 disc narrowing and spondylotic changes. The VA examiner explained that strain is a typically self limited injury to paraspinous soft tissues. Degenerative spine and disc disease is exceedingly common in the population at large, and typically advances slowly with age and over many years. There is no medical evidence to suggest that strain causes, predisposes to, or accelerates the development of degenerative spine and disc disease. There was no evidence of degenerative spine or disc disease in service or for many years thereafter. It was unlikely that the Veteran's service related back injury (diagnosed as strain) has any relationship to his current degenerative cervical and lumbar spine and disc disease. It was unlikely that his service lumbar strain injury materially changed the nature and course of his service related injury other than causing it in the first place. The examiner added that if one were to apply the same logic to the 1999 truck injury one could draw the same conclusions - there unlikely to be any relationship between the injury and his degenerative spine and disc disease or to his service strain injury. In July 2013, the Veteran's representative submitted treatises addressing sprains and strains of the cervical spine and low back pain in adults. In correspondence dated in August 2013, the Veteran's representative addresses the September 2012 addendum of the VA examiner and suggests that in stating that "It is unlikely that his service lumbar strain injury materially changed the nature and course of his service related injury other than to causing it in the first place" the VA examiner conceded that the Veteran has a lumbar strain disability that resulted from the in-service injury. While the Board does not agree that the VA examiner established that the Veteran has a current low back disability as a result of his in-service injury, the Board does find that this statement is patently unclear. Additionally, the Veteran's representative referenced the VA's examiner's statement that strains do not cause or accelerate degenerative spine or disc disease and therefore it was unlikely that the service related back injury has any relationship to his current degenerative cervical and lumbar spine disc disease in asserting that the examination report was inadequate. In this regard, the Veteran's representative asserted that the medical opinion was based on an inaccurate factual premise because nowhere in the medical evidence was it documented that the Veteran suffered from lumbar spine disc disease. On the contrary, the medical evidence specifically established that although he continued to suffer from back pain since his in-service injury, no lumbar spine disc disease had been diagnosed. Additionally, the Veteran's representative asserted that the addendum did not comply with the Board's remand instructions in that the Board specifically requested the examiner to determine whether the Veteran's lumbar and cervical strains were related to the in-service injury, even if he did not currently have a diagnosis, but the examiner did not address this question. In light of the foregoing, the Board finds that it continues to be unclear whether the Veteran has had a back disability over the course of this appeal that was manifested as a result of his period of active service. In this regard, while the VA examiner indicated that there had been no mention of neck problems in service, there were numerous reports of treatment for low back symptoms following the July 1998 injury. Moreover, in rendering the foregoing opinion, the VA examiner did not appear to consider the Veteran's competent reports and other lay statements of symptoms experienced since his July 1998 in-service accident. An examination report in which the examiner does not consider a Veteran's reports of in-service symptoms and, instead, relied on the absence of evidence in the service treatment records to provide a negative opinion is deemed inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, the precise nature of the Veteran's asserted disability over the course of this appeal remains unclear. Additionally, where non-service-connected symptoms cannot be separated from service-connected symptoms, all of the symptoms are treated as connected to service. In this regard, an opinion must also be obtained as to whether the symptomatology associated with any in-service back disability can be disassociated from the symptoms attributable to the January 1999 post-service motor vehicle accident. See Mittleider v. Brown, 11 Vet App 181 (1998); see also Esteban v. Brown, 6 Vet. App. 259 (1994). As such, the Board finds that a new VA examination is required. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). See also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes); Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (inadequate medical evaluation frustrates judicial review). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted back disability should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO shall ask the Veteran to identify all locations of VA treatment or evaluation for his asserted back disability and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 2. The RO shall afford the Veteran a VA new examination by a VA physician that has not previously examined the Veteran in order to determine the nature and etiology of his asserted back disability over the entire course of this appeal. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary shall be conducted and the results reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not that the Veteran has had a back disability (either cervical or lumbar) at any time over the course of this appeal since the date of claim in March 2000, and if so, whether it is at least as likely as not that such is/are related to his period of active service. The examiner is notified that where manifestations of a service-connected disability cannot be separated from the manifestations of a non-service-connected disability, all manifestations must be attributed to the service-connected disability. In doing so, the examiner must specifically address the July 1998 in-service injury, to include the ongoing service treatment dated through November 1998. The examiner is also requested to address the treatise evidence submitted by the Veteran's representative in July 2013. The examiner must also specifically address the Veteran's lay testimony and statements in support of his claim. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. Medical reasons for rejecting any part of the Veteran's history should be set forth in detail. The examiner is also advised that the absence of evidence of treatment for a neck or back disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. It is requested that the examiner discuss the prior medical evidence in detail and reconcile any contradictory evidence. 3. The RO will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ J.A. MARKEY 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) (2013).