Citation Nr: 1804412 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-00 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for cervical spine disability. 2. Entitlement to service connection for thoracolumbar spine disability. 3. Entitlement to service connection for scoliosis of the thoracic spine. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from July 1979 to June 1982. The Veteran also served in the United States Army Reserve and the National Guard of Minnesota. These matters come before the Board of Veterans' Appeals (Board) on appeal of a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This case was previously remanded by the Board in July 2016. The case has been returned to the Board for review. Concerning the rating decision on appeal, the December 2011 rating decision denied the claims for entitlement to service connection for scoliosis of the thoracic spine and degenerative disc disease, lumbar and cervical spine. Within one year of notification of the December 2011 rating decision, relevant evidence was received consisting of private medical treatment records. In addition, within one year of notification of the December 2011 rating decision, VA received a statement from the Veteran in May 2012. The Veteran asked for reconsideration of the December 2011 rating decision. The Board liberally construes this statement as a timely notice of disagreement with the December 2011 rating decision. 38 C.F.R. § 20.201. As a substantive appeal was received within 60 days of issuance of the Statement of the Case, the December 2011 rating decision did not become final and it is listed as the rating decision on appeal. In addition, the Board recognizes that a June 2009 rating decision denied entitlement to service connection for scoliosis of the thoracic spine and degenerative disc disease, lumbar and cervical spine. The Veteran was notified of the decision and her rights to appeal. No appeal was taken therefrom, and the June 2009 rating decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2017). However, additional relevant service medical treatment records were obtained and associated with the claims file after the June 2009 rating decision was issued. Accordingly, the Board will reconsider the claims without the requirement of the receipt of new and material evidence to reopen the claims for service connection. 38 C.F.R. § 3.156 (c) (1) (2017). In May 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the St. Paul, Minnesota RO. A transcript of the hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a) (2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that further development is necessary before a decision on the merits may be made relating to the issues on appeal. In July 2016, the Veteran's claims were remanded, in part, to obtain a VA addendum opinion. Specifically, the July 2016 Board remand directed the VA examiner to determine the current nature and etiology of any spine disability. The VA examiner was directed to provide an opinion as to whether it is clear and unmistakable that the Veteran's scoliosis existed prior to her first period of active service from July 1979 to June 1982 and, if so, whether it is clear and unmistakable that the her scoliosis was not aggravated by active service. The VA examiner was further directed to opine as to whether it is at least as likely as not that the Veteran's scoliosis which preexisted his Reserve service was aggravated by an injury or disease incurred during a period of ACDUTRA or an injury incurred during a period of INACDUTRA. As to the Veteran's cervical spine disability, the VA examiner was directed to express an opinion as to whether it is at least as likely as not that any cervical spine disability is related to her period of active service or whether it is at least as likely as not that a cervical spine disability is related to a disease or injury incurred during a period of ACDUTRA or an injury incurred during a period of INACDUTRA. The VA examiner was further directed to express an opinion as to whether it is at least as likely as not that a preexisting cervical spine disability, due to a 1993 motor vehicle accident, was aggravated by a disease or injury during a period of ACDUTRA or aggravated by an injury incurred during a period of INACDUTRA. As to the Veteran's thoracolumbar spine disability, the VA examiner was directed to express an opinion as to whether it is at least as likely as not that any thoracolumbar spine disability is related to her period of active service or whether it is at least as likely as not that a thoracolumbar spine disability is related to a disease or injury incurred during a period of ACDUTRA or an injury incurred during a period of INACDUTRA. The VA examiner was further directed to express an opinion as to whether it is at least as likely as not that a preexisting thoracolumbar spine disability, due to a 1993 motor vehicle accident, was aggravated by a disease or injury incurred during a period of ACDUTRA or aggravated by an injury incurred during a period of INACDUTRA. Pursuant to the July 2016 Board remand, the Veteran was provided three separate VA addendum opinions. The Veteran was provided a VA addendum opinion in December 2016. The VA examiner reviewed the Veteran's records. The VA examiner opined that the Veteran's scoliosis clearly and unmistakably preexisted her active service and clearly and unmistakably was not aggravated by her period of active service. The December 2016 VA examiner also opined that the Veteran's cervical spine disability clearly and unmistakably preexisted her active service and was not clearly and unmistakably aggravated during her period of active service. However, the record does not support that the Veteran's cervical spine disability preexisted her active duty. The Veteran contends that she injured her cervical spine during her active duty, during a period of ACDUTRA or during a period of INACDUTRA, or in the alternative, that her cervical spine disability was clearly and unmistakably aggravated during a period of ACDUTRA or INACDUTRA after her 1993 motor vehicle accident. The Board finds that the December 2016 VA addendum opinion is inadequate because the rationale on which it is based is factually inaccurate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). In addition, the December 2016 VA examiner did not provide an opinion as to whether the Veteran's scoliosis which preexisted Reserve service was aggravated during a period of ACDUTRA or INACDUTRA; whether her cervical spine disability was related to her active service, a period of ACDUTRA or a period of INACDUTRA; whether her cervical spine disability was aggravated during a period of ACDUTRA or INACDTURA; or an opinion relating to the etiology of her thoracolumbar spine disability as directed by the July 2016 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). The Veteran was provided a second VA addendum opinion in January 2017. The VA examiner reviewed the Veteran's available records. The January 2017 VA examiner opined that the Veteran's thoracolumbar spine disability is less likely as not related to her active military service. As rationale, the VA examiner stated that the weight of the medical evidence does not support a causal relationship between heavy lifting or stretching of the spine and development of degenerative joint disease. The Board finds that the January 2017 VA examination is also inadequate for decision making purposes. Barr, 21 Vet. App. at 312. First, the VA examiner did not discuss the Veteran's diagnosis of degenerative disc disease of the thoracolumbar spine. The VA examiner also did not opine as to whether the Veteran's thoracolumbar spine disability was caused by an injury or disease incurred during a period of ACDUTRA or an injury incurred during a period of INACDUTRA or whether her thoracolumbar spine disability was aggravated during a period of ACDUTRA or INACDTURA as directed by the July 2016 Board remand. See Stegall, 11 Vet. App. at 271. The Veteran was provided a third review of available records in September 2017. The VA examiner opined that the Veteran's disability was not chronically aggravated by her active service or that her cervical spine or lumbar spine disability were chronically aggravated by her periods of ACDUTRA and INACDTURA. The Board also finds that the September 2017 VA examination is inadequate for decision making purposes. Barr, 21 Vet. App. at 312. The VA examiner did not provide an opinion as to whether the Veteran's scoliosis was aggravated during a period of ACDUTRA or INACDUTRA as directed by the July 2016 Board remand. The VA examiner also did not provide an opinion as to whether the Veteran's cervical spine disability or thoracolumbar spine disability are directly related to her active duty, a period of ACDUTRA or a period of INACDUTRA. As such, the September 2017 VA examination does not substantially comply with the July 2016 Board remand directives. See Stegall, 11 Vet. App. at 271. A review of all three VA addendum opinions reveals that the VA examiners provided inadequate opinions or completely failed to provide opinions regarding whether the Veteran's scoliosis which preexisted Reserve service was aggravated by an injury or disease during a period of ACDUTRUA or an injury during a period of INACDUTRA; whether her cervical spine disability is directly related to her active service, or an injury or disease during a period of ACDUTRA or an injury during a period of INACDTRA; or whether her thoracolumbar spine disability is related to an injury or disease during a period of ACDUTRA or an injury during a period of INACDUTRA. As such, the VA addendum opinions are inadequate for decision making purposes and must be remanded for a new VA addendum opinion. See Barr, 21 Vet. App. at 312; see also Stegall, 11 Vet. App. at 271 Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain updated VA treatment records, to include from the Minneapolis, Minnesota VAMC, from March 2016. All attempts to obtain these records must be documented in the claims file. 2. Forward the record and a copy of this remand to the examiner who provided the September 2017 VA addendum opinion, or if the examiner is unavailable, to another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: a) Whether it is clear and unmistakable that the Veteran's scoliosis existed prior to the first period of active service from July 1979 to June 1982 and, if so, whether it is clear and unmistakable that the scoliosis was not aggravated by active service. b) Concerning any subsequent period of ACDUTRA or INACDUTRA, express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the scoliosis which preexisted Reserve service was aggravated by an injury or disease incurred in ACDUTRA or an injury incurred in INACDUTRA. c) Concerning the Veteran's cervical spine disability, express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any cervical spine disability is related to the period of active service from July 1979 to June 1982. d) Concerning any subsequent period of ACDUTRA/INACDUTRA, express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a cervical spine disability is related to a disease or injury during ACDUTRA, or an injury incurred during INACDUTRA. e) Concerning any period of ACDUTRA/INACDUTRA, express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a preexisting cervical spine disability, due to a 1993 motor vehicle accident, was aggravated by a disease or injury during ACDUTRA or aggravated by an injury incurred during INACDUTRA. f) Concerning the thoracolumbar spine disability, express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any thoracolumbar spine disability is related to the period of active service from July 1979 to June 1982. g) Concerning any period of ACDUTRA/INACDUTRA, express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the thoracolumbar spine disability was caused by an injury or disease incurred in ACDUTRA or an injury incurred in INACDUTRA. h) Concerning any period of ACDUTRA/INACDUTRA, express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any preexisting thoracolumbar spine disability, due to a 1993 motor vehicle accident, was aggravated by an injury or disease incurred in ACDUTRA or an injury incurred in INACDUTRA. The term "aggravation" is defined as a worsening beyond the natural progression of the disease. The examiner must provide a complete rationale for all opinions expressed. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether entitlement to service connection for scoliosis of the thoracic spine, entitlement to service connection for cervical spine disability and entitlement to service connection for thoracolumbar spine disability may be granted. If any benefit sought remains denied, furnish the Veteran and her representative with a supplemental statement of the case. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).