Citation Nr: 18158375 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 09-31 643 DATE: December 14, 2018 ORDER Entitlement to service connection for a thoracolumbar spine disorder is granted. REMANDED Entitlement to service connection for a left leg or left ankle disorder, to include as secondary to a service-connected thoracolumbar spine disorder, is remanded. Entitlement to service connection for a right wrist disorder, to include as secondary to a thoracolumbar spine disorder, is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to a thoracolumbar spine disorder, is remanded. Entitlement to service connection for a right arm disorder, to include as secondary to a service-connected thoracolumbar disorder, is remanded. Entitlement to service connection for neuropathy of the lower extremities, to include as secondary to a service-connected thoracolumbar spine disorder, is remanded. Entitlement to service connection for radiculopathy of the upper extremities, to include as secondary to a service-connected cervical spine disorder, is remanded. Entitlement to service connection for a left shoulder disorder, to include as secondary to service-connected cervical spine and/or thoracolumbar spine disorders, is remanded. FINDING OF FACT The Veteran’s current thoracolumbar spine disorder is at least as likely as not etiologically related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for a thoracolumbar spine disorder have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1984 to May 1989. Specifically, he served in the U.S. Navy from January 1984 to May 1989, and served in the U.S. Air Force from May 8, 1989, to May 26, 1989. In a December 2016 decision, the Board declined to grant entitlement to service connection for a thoracolumbar disorder, left ankle disorder, right wrist disorder, right knee disorder, right arm disorder, and neuropathy of the lower extremities. A January 2017 Court of Appeals for Veterans Claims (CAVC) order vacated the Board’s decision, and adopted a Joint Motion for Remand (JMR) for reconsideration of the Veteran’s claim. These issues are once again before the Board. Additionally, in December 2016, the Board remanded the claims of entitlement to service connection for radiculopathy of the upper extremities and a left shoulder disorder to the Agency of Original Jurisdiction (AOJ) for additional development. These issues have been returned to the Board for further adjudication. 1. Entitlement to service connection for a thoracolumbar spine disorder Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence must show (1) a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process – or relatively close thereto – can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In the absence of a diagnosed or identifiable underlying condition, the current disability prong may be satisfied by pain which causes functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Service connection for certain chronic disorders, including arthritis, may be presumed where demonstrated to a compensable degree within 1 year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For an enumerated “chronic disease” such as arthritis shown in service (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). June 1988 service treatment records reflect that the Veteran sought treatment for a low back injury. June 1988 service treatment records also reflect that the Veteran was assessed with “resolving back strain.” His November 1988 enlistment examination for the U.S. Air Force reflects a normal spine, and the Veteran indicated no back pain. The Veteran has a current diagnosis of thoracolumbar spine osteoarthritis. See, e.g., October 2012 VA Examination. The claims file contains conflicting evidence concerning the etiology of the thoracolumbar spine disorder. The claims file contains an October 2010 VA opinion that the current back disability is not related to service because there were no records of complaints from 1988 to 1995. During the October 2012 VA examination in which the Veteran was diagnosed with thoracolumbar osteoarthritis, the examiner reviewed the Veteran’s treatment records and examined him. The examiner determined that the disorder is less likely than not etiologically related to service, opining that it was more likely than not the result of a post-service worker’s compensation injury described by the Veteran. In an April 2016 VA addendum opinion, another examiner also determined that the thoracolumbar disorder was less likely than not related to service. After reviewing the Veteran’s treatment records, the examiner opined that there was “scant evidence” of a back injury in the service treatment records, and the Veteran’s statements while seeking treatment indicated that the disorder was related to a post-service work injury. By contrast, the claims file contains private medical records indicating the thoracolumbar disorder is etiologically related to service. These records contain a June 2005 and May 2006 outpatient evaluations of the Veteran in which the same examiner determined the Veteran had “[s]evere, chronic, and permanent lumbar spine discogenic syndrome that was connected to active duty service. The private examiner noted treatment during service and continued chronic pain after service. The examiner concluded that exacerbation of the disorder during post-service work does not detract from the chronic and permanent original injury during service. The Board also obtained an additional expert medical opinion in October 2018. The expert determined that the Veteran’s thoracolumbar spine disorder is at least as likely as not etiologically related to the documented in-service injury, and was aggravated by multiple post-service injuries. Citing American Medical Association literature about the etiology of back pain, the expert determined that the probable etiology of the Veteran’s back pain is “multifactoral causes.” During the May 2011 Board hearing, the Veteran testified that he has had pain in his low back since his June 1988 in-service injury. See also February 2007 Veteran Statement. The claims file also contains April and March 2007 lay statements describing the in-service low back symptoms, and the continuation of those symptoms after service, including flare-ups in the 1990’s. The Veteran and lay observers are competent to report experiencing and observing symptoms such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the testimony and statements to be probative and credible. Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not that his thoracolumbar disorder is etiologically related to service. While October 2010, October 2012, and April 2016 VA examiners concluded the disorder was less likely than not etiologically related to service, those opinions appear to rely on the absence of treatment records in the years following service, and conclude post-service injuries caused the current disorder. By contrast, June 2005 and May 2006 outpatient evaluations by the same private doctor indicate the disorder is etiologically related to service, but do not provide sufficient rationale for VA rating purposes. The October 2018 expert opinion also concludes that the disorder is etiologically related to service, and contains a review of the Veteran’s treatment records and references medical literature in reaching that conclusion. Finally, credible and probative Veteran and lay statements indicate that the Veteran experienced several thoracolumbar spine symptoms since his in-service injury. In this case, entitlement to service connection for a thoracolumbar spine disorder is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left leg or left ankle disorder, to include as secondary to a service-connected thoracolumbar spine disorder, is remanded. 2. Entitlement to service connection for a right wrist disorder, to include as secondary to a thoracolumbar spine disorder, is remanded. 3. Entitlement to service connection for a right knee disorder, to include as secondary to a thoracolumbar spine disorder, is remanded. 4. Entitlement to service connection for a right arm disorder, to include as secondary to a service-connected thoracolumbar disorder, is remanded. 5. Entitlement to service connection for neuropathy of the lower extremities, to include as secondary to a service-connected thoracolumbar spine disorder, is remanded. 6. Entitlement to service connection for radiculopathy of the upper extremities, to include as secondary to a service-connected cervical spine disorder, is remanded. 7. Entitlement to service connection for a left shoulder disorder, to include as secondary to service-connected cervical spine and/or thoracolumbar spine disorders, is remanded. As an initial matter, there has not been substantial compliance with the Board’s previous remand directives regarding the issues on appeal. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the December 2016 remand, the Board instructed the AOJ to provide the Veteran with VCAA notice regarding evidence needed to substantiate the claims of secondary service connection for bilateral radiculopathy of the upper extremities and the left shoulder disorder. It does not appear that the AOJ provided such notice. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for a left leg/left ankle disorder, right wrist disorder, right knee disorder, right arm disorder, neuropathy of the lower and upper extremitites, and left shoulder disorder because no VA examiner has opined whether it is at least as likely as not that these disorders were caused by injuries resulting from the Veteran’s service-connected thoracolumbar spine disorder. The matters are REMANDED for the following action: 1. Provide the Veteran with VCAA notice for all the issues on appeal regarding the evidence and information necessary to substantiate claims of entitlement to service connection as secondary to service-connected disorders. 2. Obtain VA treatment records since April 2016 and associate them with the claims file. 3. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of any diagnosed left leg or ankle disorder, right wrist disorder, right knee disorder, right arm disorder, neuropathy of the lower extremities, radiculopathy of the upper extremities, and left shoulder disorder. The examiner should answer the following questions: (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed left leg or ankle disorder is etiologically related to service, or is caused or aggravated by service-connected thoracolumbar disorder? (b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed right wrist disorder is etiologically related to service, or is caused or aggravated by service-connected thoracolumbar disorder? (c) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed right knee disorder is etiologically related to service, or is caused or aggravated by service-connected thoracolumbar disorder? (d) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed right arm disorder is etiologically related to service, or is caused or aggravated by service-connected thoracolumbar disorder? (e) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed neuropathy of the lower extremities is etiologically related to service, or is caused or aggravated by service-connected thoracolumbar disorder? (f) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed radiculopathy of the upper extremities is etiologically related to service, or is caused or aggravated by service-connected thoracolumbar disorder? If an electromyography is needed to determine whether the Veteran has radiculopathy of the upper extremities, one should be conducted. (g) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed left shoulder disorder is etiologically related to service, or is caused or aggravated by service-connected thoracolumbar disorder? The examiner should address the following: • conflicting treatment records regarding whether the Veteran has any neuropathy or radiculopathy of the upper and lower extremities; • October 2012 VA examinations indicating the left leg or ankle disorder, right wrist disorder, right arm disorder, right knee disorder, and left shoulder disorder were at least as likely as not the result of a post-service injury; • the Veteran’s May 2011 testimony that he fell and injured himself because of his service-connected thoracolumbar disorder; and • private medical records reflecting that the Veteran’s November and December 2006 injuries were a direct result of his thoracolumbar spine disorder. In answering these questions, the examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of each disorder (i.e., a baseline) before onset of the aggravation. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Howell, Associate Counsel