Citation Nr: 1803808 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 11-25 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for residuals of a low back injury with pain and degenerative arthritis also claimed as a tailbone injury. 2. Entitlement to service connection for a cervical spine disability, to include degenerative arthritis. 3. Entitlement to service connection for a bilateral lower extremity peripheral nerve disability, to include peripheral radiculopathy, or as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1970 in the Navy and March 1973 to March 1974 in the Indiana National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied entitlement to service connection for low back injury with pain, degenerative change of the cervical spine, and peripheral neuropathy of the lower extremities. Jurisdiction has transferred to the RO in Indianapolis, Indiana. See, e.g., April 2017 Form VA 9. The evidentiary record shows diagnoses for degenerative arthritis of the cervical spine and peripheral radiculopathy within the appeal period. Accordingly, the Board has characterized those issues as stated on the title page to afford the Veteran a broader scope of review. See Browkowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009) (the Veteran may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (regarding the scope of a claim). In a March 2017 rating decision, the RO granted service connection for compression fractures, thoracolumbar spine with an evaluation of 0 percent effective from July 24, 2015. See March 2017 rating decision. However, the concomitant supplemental statement of the case (SSOC) denied service connection for "low back injury with pain and degenerative arthritis, also claimed as tailbone injury." See March 2017 SSOC. As such, the scope on appeal for the Veteran's thoracolumbar spine claim is limited to "low back injury with pain and degenerative arthritis." In December 2012, the Veteran and his wife testified at an RO hearing before a decision review officer (DRO). A copy of the transcript is associated with the evidentiary record. The Veteran requested a hearing before the Board. See September 2011 Form VA 9. VA notified him of the scheduled hearing in June 2017. See June 2017 VA notification letter. The Veteran did not attend his hearing, has not presented good cause for doing so, and has not requested a new hearing. Accordingly, the Veteran's hearing request is withdrawn. 38 C.F.R. § 20.702(d) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND The Board sincerely regrets the additional delay, but finds that further development is required prior to final adjudication of the Veteran's claims. The Veteran's claims stem from an injury sustained in service; specifically, the Veteran recalls that he fell and hit his lower back on the concrete edge of a pool during a boot camp swimming test. See December 2012 RO hearing. At the RO hearing, the Veteran's wife testified that the Veteran told her about the incident and complained of back pain ever since. Id. The Veteran also has submitted a statement from R.L., who stated that the Veteran could not help him move any furniture around the time of the incident "because of his back pain where he fell in the swimming pool while in boot camp." See March 2009 R.L. statement. Further, "when [the Veteran] returned from Hawaii two years later I went to the Navy Recruiter to enlist. [The Veteran] still had the back pain after that period of time." Id. However, on August 19, 2008, the Veteran complained of back and neck pain after being rear-ended in a motor vehicle accident. See August 2008 medical treatment record. Magnetic resonance images (MRIs) revealed degenerative changes in the Veteran's cervical and thoracolumbar spine almost two weeks after the accident. See August 2008 MRI reports. In March 2012, the Veteran was afforded a VA examination to assess the etiology of his lower back disability. In May 2016, VA obtained an addendum opinion clarifying the March 2012 opinion. However, the Board finds that the VA examiner's findings are inadequate for adjudicative purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The March 2012 examiner recounted the Veteran's lower back injury and treatment history. See March 2012 VA examination. The examiner found that a 1989 bone scan showed "two old fractures of lower back." Id. As a result, the examiner determined that the Veteran's lower back disability was at least as likely as not incurred in or caused by the Veteran's pool incident. Specifically, the examiner reasoned that "[f]acet arthropathy could have been caused by the pool injury and then aggravated by the motor vehicle accident in 2008." However, as the medical examiner used the word "could" in her "rationale" section, and did not provide an explanation as to how or why facet arthropathy could have been caused by a pool injury, the opinion is speculative. See, e.g., Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (finding a doctor's statement that a brain tumor "may well be" connected to service was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (explaining that use of the word "could," without rationale or supporting data, is too speculative to support an award of benefits); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (noting that a speculative medical opinion as to causation cannot establish medical nexus to service). As a result, VA obtained an addendum opinion from the same examiner in May 2016 to address the etiology of the Veteran's lower back disability. There, the VA examiner opined that the Veteran's degenerative disc disease of the lumbar spine with radiculopathy, bilateral lower extremities was less likely than not incurred in or caused by the Veteran's pool injury. In support of her opinion, she stated that "[a]fter review of all of the STRs and other ancillary notes [sic] due to the facts that there were so many times that the veteran denies back pain until after he had the [motor vehicle accident] it would appear that the [motor vehicle accident] in 2008 is the cause of his back pain and not the service." See May 2016 VA examination. Here, as stated above, the Veteran's x-rays taken a few days after his motor vehicle accident already showed degenerative changes to his lumbar spine. Further, the Veteran, his wife, and R.L. have testified that the Veteran's symptoms began in service and continued thereafter. The Veteran also provided receipts showing treatment in 2004 and an emergency department record noting severe back pain. See December 2003 emergency room treatment record. As such, the examiner improperly discounted the Veteran's lay testimony and relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion; such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Therefore an addendum opinion is required to address these inconsistencies and determine whether the Veteran's current symptoms resulted from his pool injury in service. As to the radiculopathy claim, the record raises the theory that the Veteran's disability is related to his lumbar spine disability. A December 2010 electromyography (EMG) report showed that the Veteran was referred for bilateral foot paresthesias and foot drop. See December 2010 EMG report. The results of this study were abnormal and there was evidence of "chronic bilateral L5 radiculopathy." Id. In contrast, an April 2012 EMG report was normal that noted no "electrophysiological evidence of peripheral neuropathy." See April 2012 EMG report. However, peripheral neuropathy has a different etiological pathway than radiculopathy and the report noted that the Veteran's "more symptomatic right lower extremities were studied." Further, the examiner of the neuropathy study stated that the earlier study "already established the presence of chronic L5 radiculopathies and was not repeated, given the concern was questioned over evidence of peripheral neuropathy." Id. As such, the Veteran's radiculopathy claim is inextricably intertwined with the remanded lumbar spine claim. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As to the service connection for a cervical spine disability claim, the record contains evidence of degenerative changes to the neck. The Veteran has attested that this disability emanated from his pool injury in service, and has attested to continuing symptoms since service. Therefore, a VA examination is necessary to determine if the Veteran's cervical spine disability is related or attributable to his time on active duty. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include treatment records dated from March 2017 to present. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If the records are not available, or a negative response is received, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own. 2. After completing the above, and after any records obtained have been associated with the evidentiary record, obtain an addendum opinion from an appropriately qualified VA examiner, to exclude the examiner who conducted the March 2012 and May 2016 VA examinations, to determine the nature and etiology of the Veteran's residuals of a low back injury with pain and degenerative arthritis. Further, schedule the Veteran for an examination to determine the nature and etiology of his cervical spine disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran (if deemed necessary by the examiner for the lower back disability claim), the VA examiner is asked to respond to the following inquiries: A. Is it as likely as not that the Veteran's residuals of a low back injury with pain and degenerative arthritis was either incurred in, or otherwise related to, the Veteran's active military service? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. Further, the examiner is to discuss the Veteran's in-service pool injury and treatment. This includes a discussion of the Veteran's continuity of symptomatology since service. Specifically, the examiner is to discuss his emergency room treatment before 2008 and statements from his wife and R.L. attesting to his symptoms since the pool incident. B. Is it as likely as not that the Veteran's cervical spine disability was either incurred in, or otherwise related to, the Veteran's active military service? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. Further, the examiner is to discuss the Veteran's in-service pool injury and treatment. This includes a discussion of the Veteran's continuity of symptomatology since service. Specifically, the examiner is to discuss his emergency room treatment before 2008 and statements from his wife and R.L. attesting to his symptoms since the pool incident. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The AOJ should conduct any other development deemed appropriate, and ensure that the VA examination reports and opinions comply with the Board's remand instructions. 4. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ G. A. WASIK 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) (2017).