Citation Nr: 18147543
Decision Date: 11/05/18	Archive Date: 11/05/18

DOCKET NO. 14-10 320
DATE:	November 5, 2018
REMANDED
1. Entitlement to service connection for spondylosis, L5 with spina bifida occulta (back disability).
2. Entitlement to service connection for a cervical spine disability with radiculopathy.
3. Entitlement to service connection for a psychiatric disorder, to include a nervous condition and depression, to include as secondary to the non service-connected back disability.
4. Entitlement to service connection for a right knee disability, to include as secondary to the non service-connected back disability.
5. Entitlement to service connection for a gastroesophageal reflux disease (GERD), to include as secondary to the non service-connected back disability.
6. Entitlement to service connection for radiculopathy, to include as secondary to the non service-connected back disability.
7. Entitlement to service connection for bilateral lower extremity neuropathy, to include as secondary to the non service-connected back disability.

REASONS FOR REMAND
The Veteran, who is the appellant in this case, served on active duty from March 1972 to September 1972.

In December 2016, the Board determined, as pertinent here, that the Veteran’s prior claim for service connection for spondylosis, L5 with spina bifida occulta (back disorder) was not final, reopened the Veteran’s prior final claims for service connection for GERD, cervical spine, right knee, and radiculopathy, and recognized initial claims of service connection for a chest disability and bilateral neuropathy of the lower extremities.  The Board remanded the claims for further development, requesting VA examinations and obtaining medical opinions addressing the etiology of the back, cervical spine, and psychiatric disorders.  See Board Decision and Remand dated December 6, 2016.  As explained below, the VA opinions are inadequate.

Preliminary Matter

In December 2016, the Board determined that the Veteran’s appeal of VA’s September 1973 denial of service connection for a chest disorder was pending because the RO did not issue a Statement of the Case (SOC).  The Board assumed jurisdiction over the issue, requested that the RO issue a Statement of the Case (SOC), and an SOC was issued in August 2018.  However, the Veteran did not timely perfect his appeal as to this issue, and it is no longer in appellate status.

Remand of Issues on Appeal

The Board’s December 2016 remand requested VA medical opinions addressing the etiology of the Veteran’s back, neck and psychiatric disabilities.  However, upon review the Board finds that there was not substantial compliance with the remand directives pertaining to the requested opinions, or other deficiencies render the opinions inadequate, as discussed below.  Stegall v. West, 11 Vet. 268, 271 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders).

Spondylosis, L5 with spina bifida occulta

The Board’s December 2016 remand requested that a VA examiner provide a medical opinion as to whether the Veteran’s spondylosis, L5 with spina bifida occulta, clearly and unmistakably preexisted service, and was not clearly and unmistakably aggravated by service.  See Board Decision and Remand dated December 6, 2016 at pgs. 13-14.  The June 2018 VA examiner stated that “there is evidence” in the record that the Veteran was determined during service to have a diagnosis of spondylosis at L-5 vertebra and pars articularis that is congenital, and that “there is written evidence” that the condition was neither incurred in nor aggravated by service, and that it preexisted service.  See VA examination report dated June 13, 2018 at pg. 6.  While the examiner’s remarks accurately reflect certain evidence of record, merely describing the nature of the evidence does not satisfy the legal standard necessary for determining whether the presumption of soundness has been rebutted.

Additionally, the Board, in its December 2016 remand, requested that the examiner discuss the Veteran’s October 2011 statement, which includes remarks concerning an in-service back injury that he claims caused his current back disability.  However, the June 2018 examiner did not even mention the October 2011 statement.  For these reasons, remand is necessary to obtain an addendum opinion.

Cervical spine disability with radiculopathy

The Board’s December 2016 remand requested that the examiner discuss the Veteran’s October 2011 statement, which includes remarks relevant to an in-service injury he claims caused his cervical spine disability.  However, the examiner merely noted that the examiner “read and considered” the October 2011 statement; the examiner failed to discuss the Veteran’s October 2011 remarks.  See VA examination report dated June 13, 2018 at pg. 9.  Merely acknowledging the October 2011 statement does not remotely comply with the Board’s December 2016 request to discuss the statement.  See Board Decision and Remand dated December 6, 2016 at pg. 14.  Therefore, on remand, the examiner must discuss the Veteran’s October 2011 statement in an addendum opinion and rationale.

Psychiatric disabilities

The Board’s December 2016 remand requested that the examiner discuss the Veteran’s October 2011 statement in rendering an opinion.  See Board Decision and Remand dated December 6, 2016 at pg. 15.  However, the examiner did not even mention, the Veteran’s October 2011 lay statements.  Additionally, the June 2018 VA examination report includes conflicting information as to the Veteran’s current mental health diagnoses.  Initially, the diagnoses are identified as “unspecified depressive disorder” and “alcohol use disorder, moderate.”  However, the diagnoses are subsequently identified in the same report as “panic disorder with agoraphobia” and “dysthymic disorder.”  See VA examination report dated June 13, 2018 at pgs. 1, 5.  Therefore, on remand, the examiner must discuss the Veteran’s October 2011 statement and clarify the psychiatric diagnoses in an addendum opinion and rationale.

GERD, right knee, and radiculopathy/neuropathy

In light of the remand of the Veteran’s claims for service connection for a back disability, and recognizing that the Veteran is also seeking service connection for GERD, right knee, and radiculopathy/neuropathy secondarily related to his back disability, the claims are inextricably intertwined, and must be remanded as well.


The matters are REMANDED for the following action:

1. Ensure that all outstanding VA treatment records are associated with the claims file.
2. Then, obtain an addendum VA medical opinion to determine the nature and etiology of the Veteran’s back disorder.  The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the VA examiner.
(a) After a complete review of the claims file, the examiner is asked to address the following:
(1) Identify all back disorders that have been present at any point during the appeal period.
(2) State whether the Veteran’s diagnosed back disorders are congenital or developmental defects or disease;
(3) If any back disorder is found to be a congenital or developmental defect, explain whether it is at least as likely as not (a 50 percent or greater probability) that there was a superimposed injury or disease in active duty that resulted in additional disability(s) of the back;
(4) If any injury or disease of the back both (1) clearly and unmistakably preexisted service, and, if so; (2) clearly and unmistakably was NOT aggravated by service.
For purposes of this analysis, aggravation is defined as a permanent worsening of the non-service connected disability beyond that due to the natural disease process.
**To ensure that the correct legal standard is applied, the examiner’s opinion MUST BE STATED IN TERMS OF whether the disorder “clearly and unmistakably preexisted service” AND whether the disorder “clearly and unmistakably was NOT aggravated by service.”
(b) If a current back disorder is found not to have clearly and unmistakably preexisted service, is it at least as likely as not (a 50 percent or greater probability) that such disability had its onset in or is otherwise related to the Veteran’s service.
**In answering these questions, the VA examiner should consider and discuss the Veteran’s lay statements, including his OCTOBER 2011 STATEMENT associated with his Notice of Disagreement (See in VBMS 10/18/2011 “NOD” PDF pgs. 1-3).
3. Obtain an addendum VA medical opinion to determine the nature and etiology of the Veteran’s cervical spine disorder.  The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the VA examiner.
(a) After a complete review of the claims file, the examiner is asked to provide an opinion as to whether the Veteran’s cervical spine disorder is it at least as likely as not (a 50 percent or greater probability) that such disability had its onset in or is otherwise related to the Veteran’s service.
**In answering this question, the VA examiner should consider and discuss the Veteran’s lay statements, including his OCTOBER 2011 STATEMENT associated with his Notice of Disagreement (See in VBMS 10/18/2011 “NOD” PDF pgs. 1-3).
4. Obtain an addendum VA medical opinion to clarify the Veteran’s current psychiatric diagnoses, which, as reflected in the June 2018 VA examination report, are conflicting.  (See in VBMS 06/13/2018 “C&P Exam” (Mental Disorders (other than PTSD and Eating Disorders) DBQ, pgs. 1, 5).  The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the VA examiner.
(a) After a complete review of the claims file, the examiner is asked to (1) identify the currently diagnosed psychiatric disorders, and (2) provide an opinion as to whether it at least as likely as not (a 50 percent or greater probability) that each disorder had its onset in or is otherwise related to the Veteran’s service.
**In answering these questions, the VA examiner should consider and discuss the Veteran’s lay statements, including his OCTOBER 2011 STATEMENT associated with his Notice of Disagreement (See in VBMS 10/18/2011 “NOD” PDF pgs. 1-3).
The VA examiner must provide a detailed rationale for all opinions rendered.  If the examiner cannot provide the requested information without resort to speculation, it must be so stated with reasons why, and if an additional clinical evaluation is necessary to render the requested information, that opportunity should be made available.
(CONTINUED ON NEXT PAGE)

5. Thereafter, readjudicate the claims on appeal.
 
S. B. MAYS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Brad Farrell, Associate Counsel