Citation Nr: 1605537 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 08-17 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for arthritis. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for chronic fatigue syndrome. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from January 1970 to December 1972. This appeal to the Board of Veterans' Appeals (Board) is from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this case in November 2011, July 2012, April 2014, and August 2014 for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND By way of history, and as discussed in prior Board remands, the Veteran was hospitalized for neck pain and placed in cervical traction, which exacerbated her pain. Reference was made to a pre-service injury in 1966 wherein the Veteran gave a history of recurrent neck pain following a fall from a horse, She was ultimately diagnosed as having chronic cervical strain, which existed prior to enlistment (EPTE). The Board has already remanded the matter twice due to noncompliance with the directives of the July 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998). Although it is unclear if a single clinician provided the opinions of October 2014, May 2015, and August 2015, it is clear that they too are noncompliant with the questions posed regarding whether the cervical spine disorder was a preexisting disorder that was aggravated during service since these opinions were not offered. The opinions regarding service incurrence do not reflect a thorough review of the claims file despite a notation that the records were reviewed. In this regard, the clinician who offered the May 2015 opinion fails to find a relationship between the in-service event, described as "sleeping on a pillow for several nights", and the Veteran's current cervical spine subluxation, narrowing disc spaces, and compression fracture. However, the record clearly show the Veteran's assertions, lay statements, and service treatment records indicate her in-service event involved more than just sleeping on a pillow. The clinician is also inconsistent by characterizing the degenerative changes as being age-related, but then attributing these same degenerative changes to her post-service activity. The August 2015 opinion states the clinician found no evidence of a significant injury in service, but does not explain this opinion as to the severity of the injury in light of the evidence (i.e., service treatment records that note complaints from February to June 1970, X-ray findings in June 1970 of abnormal enlargement at the superior margin of C-7, a neck injury in May 1972, and statements of a neck injury in a bathroom) or explain why this evidence would not be sufficient to lead or contribute to her current cervical spine disorders. The opinion on whether arthritis is related to service is not adequately supported by the rationale. The rationale used for opining that the Veteran's arthritis was less likely related to service was essentially based solely on her current age. Finding there is an alternate etiology for a claimed disability is helpful in supporting an opinion, but primarily only when the clinician also provides a basis for determining an in-service incurrence is an unlikely option. By only basing the opinion on her age and not discussing why the Veteran's immunizations, episodic rashes, or reports of continuing symptoms after service are unlikely causes for the current arthritis, one is left with the impression that these factors, while noted, were not considered and that the clinician did not look beyond the Veteran's age when rendering an opinion. Thus, the Board concludes the opinion was not adequately supported. The Board also notes that a VA physician examined the Veteran in March 2013 and offered an addendum in July 2013. While he did not provide the requested opinions, he did indicate there was conflicting evidence and stated that with the Veteran's evidence of arthritis in multiple joints in a symmetrical distribution, a rheumatology evaluation would be appropriate, and may provide answers. The record shows that no arrangements were made to conduct the requested evaluation. The record shows that the Veteran has arthritis in her right shoulder and service treatment records show she reported that her pre-service injury that involved falling off a horse resulted in subsequent right shoulder problems. Therefore, opinions are also needed to determine of her current right shoulder arthritis is the result of a pre-service injury that was aggravated during her service. Finally, the August 2015 opinion for fatigue syndrome indicates that an opinion could not be made without pure speculation on whether the Veteran's fatigue syndrome is not in part psychology based. A clinician's statement that an opinion cannot be made without resorting to speculation is only found adequate when accompanied by an explanation as to why, such as a need for additional information or that it is beyond the limits of current medical knowledge, which this clinician did not provide. The Board also notes that mail sent by the Board since the August 2014 remand has been returned as undeliverable, but the supplemental statement of the case (SSOC) sent by the RO was not. All mail that was returned should be resent to her current address of record. Accordingly, the case is REMANDED for the following action: 1. Resend all correspondence, to include the Board's August 2014 remand, that has been returned as undeliverable to the most recent address of record. 2. Obtain and associate with the electronic file copies of all treatment records associated with the claimed disabilities since July 2012. 3. Then arrange for a rheumatology examination with a Board-certified physician to determine the likely etiology of the Veteran's arthritis. Make the Veteran's electronic claims file and a complete copy of the remand available for the examiner's review. A notation to the effect that this record review took place should be included in the report. All indicated tests or studies should be performed. a) Determine if the Veteran has rheumatoid or some other form of arthritis. The Board notes X-ray evidence of arthritis is found in the cervical spine, lumbar spine, right shoulder and right hand, both knees, and both great toes. b) Based on a review of the claims file, examination of the Veteran, and lay statements, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any of the Veteran's arthritic joints had its onset during service or is otherwise related to any event in service to include her contentions regarding immunizations in 1970 and in-service treatment for rashes. c) In rendering the opinion and providing a supporting rationale, the examiner should discuss the factual and medical basis for the opinion and consider the Veteran's reports of continuity of arthritis symptoms, post-service treatment, and the November 2009 statement from S. M., D. O. d) From a medical standpoint, is there irrefutable evidence that the Veteran had a right shoulder disorder that pre-existed her active duty service? e) If so, is there is irrefutable evidence that the pre-existing right shoulder disorder was not aggravated beyond the natural progression of the disorder due to any event of her military service? f) In forming an opinion and providing a rationale, the examiner's attention is directed to following service treatment records: * In March 1970, she complained of right arm and shoulder pain. See page 13 of STRs. * An April 1970 treatment record noted she had continued complaints in her back, shoulder, and arm. See page 14 of STRs. * An April 1970 record notes she reported having a cervical concussion 3 years earlier as a result of falling off a horse and that three days later she developed right para scapular, shoulder, and wrist pain. The clinician noted that she may be having cervical root compression on the right. See pages 15, 16, and 17 of STRs. e) If the examiner is unable to provide an opinion without resorting to speculation, he or she shall provide a complete explanation as to why. In doing so, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that it is beyond the limits of current medical knowledge in providing an answer to the particular question(s). 4. Also arrange for an appropriate examination with a Board-certified physician to determine the likely etiology of the Veteran's cervical spine disorder and fatigue syndrome. Make the Veteran's electronic claims file and a complete copy of this remand available for the examiner's review. A notation to the effect that this record review took place should be included in the report. All indicated tests or studies should be performed. After a comprehensive review of the file and examination, the following must be addressed: a) From a medical standpoint, is there irrefutable evidence that the Veteran had a cervical spine disorder that pre-existed her active duty service? b) If so, is there is irrefutable evidence that the pre-existing cervical spine disorder was not aggravated beyond the natural progression of the disorder due to any event of her military service? c) If the cervical spine disorder did not pre-exist service, did it at least as likely as not have its onset during service or was otherwise related to service? d) In rendering these opinions and providing sufficient supporting rationale, the physician must acknowledge and consider the following: * A January 1970 enlistment examination that was normal and an associated medical history report that shows she had a mild concussion in 1967. See pages 4 to 6 of STRs. * A February 1970 service treatment record that notes complaints of cervical spine tenderness. See page 13 of STRs. * An April 1970 treatment noted she had continued complaints in her back, shoulder, and arm. See page 14 of STRs. * An April 1970 record notes she he may be having cervical root compression on the right. The Veteran also sought medication for cervical back pain. See pages 15, 16, and 17 of STRs. * In May 1970, the Veteran reported that she lost her neck brace and requested another. See page 18 of STRs. * In June 1970, the Veteran reported a history of a head injury in 1966 and that neck pain had developed the next day; she had a history of neck and shoulder pain for 4 years. X-rays revealed an abnormal enlargement at the superior margin of C-7. She was placed in cervical traction, which exacerbated her pain. A myelogram revealed no abnormality or encroachment on the subarachnoid space or nerve roots. She was discharged and ordered to wear a collar at all times for 3 months, except when sleeping. The diagnosis was chronic cervical strain; EPTE (existed prior to entry). See page 21 of STRs. * July 1970 treatment records note continued back and head pain. See pages 22 to 24 of STRs. * In May 1972, the Veteran was seen for a soft tissue injury to her neck. Neck flexion was limited due to pain. See page 39 of STRs. e) Did the Veteran's fatigue syndrome at least as likely as not have its onset during service or was otherwise related to service? f) Is her fatigue syndrome at least as likely as not caused or aggravated (permanently worsened beyond normal progression of the disorder) by her service-connected PTSD with depression? g) Is her fatigue syndrome at least as likely as not caused or aggravated by her fibromyalgia? The physician's attention is directed toward a July 2013 addendum opinion that contains a diagnosis of fibromyalgia with associated malaise and fatigue and depressive disorder. h) The examiner should discuss the factual and medical basis for each opinion. i) If the examiner is unable to provide an opinion without resorting to speculation, he or she shall provide a complete explanation as to why. In doing so, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that it is beyond the limits of current medical knowledge in providing an answer to the particular question(s). 5. Then review the record to ensure all the requested development is completed. If necessary, take corrective action for any deficiency found. 6. The AOJ should then readjudicate remaining matters on appeal in light of all of the evidence of record. If any issue remains denied, furnish the Veteran and his representative a supplemental statement of the case and allow them a reasonable opportunity to respond before returning the record 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). These claims 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 2014). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).