Citation Nr: 19143294 Decision Date: 06/06/19 Archive Date: 06/05/19 DOCKET NO. 15-05 903 DATE: June 6, 2019 ORDER Entitlement to service connection for thoracic spine osteophyte formation is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for chronic thoracic sprain is remanded. Entitlement to a rating in excess of 10 percent for history of right fifth rib contusion with costochondral junction mass is remanded. Entitlement to service connection for thoracic spine degenerative disc disease is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the appellant’s thoracic spine osteophyte formation is causally related to his service-connected chronic thoracic sprain and history of right fifth rib contusion with costochondral junction mass. CONCLUSION OF LAW The criteria for entitlement to service connection for thoracic spine osteophyte formation, secondary to service-connected chronic thoracic sprain and history of right fifth rib contusion with costochondral junction mass, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the U.S. Air Force from September 1984 to March 1994. This matter comes before the Board of Veterans’ Appeals (Board) from February 2012 and October 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A February 2012 rating decision awarded service connection for chronic thoracic sprain and assigned an initial 10 percent evaluation, effective June 21, 2011, and denied entitlement to a rating in excess of 10 percent for cyst, right fifth rib. The appellant filed a timely Notice of Disagreement (NOD), received in June 2012. A Statement of the Case (SOC) was issued in January 2015. An October 2013 rating decision, inter alia, denied service connection for thoracic spine osteophyte formation and thoracic spine degenerative disc disease. The appellant filed a timely Notice of Disagreement (NOD), received in November 2013. A Statement of the Case (SOC) was issued in January 2015. A timely substantive appeal was received in January 2015. The appellant was afforded a hearing by videoconference before the undersigned in September 2018. A transcript is of record. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) 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’—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Thoracic spine osteophyte formation The Board finds that the evidence is in relative equipoise as to whether the appellant’s thoracic spine osteophyte formation is causally related to his service-connected chronic thoracic sprain and history of right fifth rib contusion with costochondral junction mass. The November 2011 VA examiner noted that imaging studies documented small marginal osteophytes in the lower thoracic spine. A May 2012 clinical note from Dr. D.O., a private clinician, states that a rib X-ray series was reviewed. Bone spurs were easy to see. The remaining spine appeared to be normal. Thus, Dr. D.O. opined that it was “certainly conceivable the injury he had in the military could have produced this problem. This would be more than a 50% chance.” The appellant was afforded a VA examination in September 2013. He was diagnosed with mild thoracic spondylosis with spurs and chronic thoracic sprain. Imaging studies were negative for arthritis. September 2013 imaging studies of the thoracic spine revealed small marginal osteophytes in the lower thoracic spine. The VA examiner opined that it was at least as likely as not that the appellant’s bone spurs were caused by or the result of his service-connected thoracic strain and/or right fifth rib cyst, in part due to the positive opinion of Dr. D.O. with respect to thoracic degenerative disc disease at the fourth rib space with bone spurs present. With respect to the May 2012 opinion of Dr. D.O. that a nexus was “certainly conceivable,” it is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). However, Dr. D.O. clarified that his opinion was that the appellant’s osteophytes had a greater than 50 percent likelihood of being caused by chronic thoracic sprain and history of right fifth rib contusion with costochondral junction mass. Further, the September 2013 VA examiner offered a positive etiological opinion with respect to the appellant’s bone spurs (osteophytes) were the result of his caused by or the result of his service-connected thoracic strain and/or right fifth rib cyst, and noted that he agreed with the opinion of Dr. D.O. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for thoracic spine osteophyte formation, secondary to service-connected chronic thoracic sprain and history of right fifth rib contusion with costochondral junction mass. REASONS FOR REMAND The appellant contends that his service-connected chronic thoracic sprain and history of right fifth rib contusion with costochondral junction mass have increased in severity since he was last afforded a Compensation and Pension examination, and that service connection is warranted for thoracic spine degenerative disc disease. See September 2018 hearing transcript. In a May 2012 clinical note, Dr. D.O., a private clinician, indicated that he reviewed a rib X-ray series and indicated that “the report does not make mention of the significant thoracic degenerative disc disease present which seems to be right-sided only in one level.” The appellant was afforded a VA examination in September 2013. On the examination report, the examiner checked a box indicating that the appellant had intervertebral disc syndrome of the thoracolumbar spine. He noted that the appellant’s civilian clinician had noted that the appellant had “significant thoracic degenerative disc disease on the right side sevel at 4th rib space with bone spurs present.” Imaging studies conducted in connection with the examination, however, showed small marginal osteophytes but degenerative disc disease was not noted. A VA medical opinion was obtained in October 2013. Following a detailed recitation of the medical evidence of record, the examiner reported that he was unable to state whether there was objective clinical evidence of degenerative disc disease of the thoracic spine because he did not have the x-rays to review and the radiology reports did not provide sufficient information to state in the affirmative or negative. A September 2018 medical opinion from J.B., a private chiropractor, states that the appellant’s functional impairment of the thoracic region is the result of his in-service injury. However, the presence or absence of degenerative disc disease was not discussed. While there are positive etiological opinions of record, it is unclear whether the appellant indeed has degenerative disc disease. Thus, additional development is needed. The Board finds that the appellant should be afforded an appropriate examination to determine the severity and manifestations of his service-connected chronic thoracic sprain, history of right fifth rib contusion with costochondral junction mass, and thoracic spine osteophyte formation, and to ascertain whether he has degenerative disc disease. The matters are REMANDED for the following action: 1. Associate any outstanding VA medical records with the claims file. 2. Contact the appellant to clarify whether there are any additional outstanding chiropractic records. Records from Borrowman Chiropractic were received in September 2018. If additional records are identified, undertake appropriate efforts to obtain and associate such with the claims file, to include obtaining any necessary authorizations. 3. Schedule the appellant for an examination to ascertain the severity of his service-connected chronic thoracic sprain, history of right fifth rib contusion with costochondral junction mass, and thoracic spine osteophyte formation. The examination should also address the nature and etiology of claimed thoracic spine degenerative disc disease. Access to the appellant’s electronic VA claims file should be made available to the examiner for review in connection with the examination. After examining the appellant and reviewing the record, the examiner should specifically delineate all pathology and symptoms attributable to the service-connected chronic thoracic sprain, history of right fifth rib contusion with costochondral junction mass, and thoracic spine osteophyte formation. The examiner should offer opinions as to the following: Does the appellant currently have thoracic spine degenerative disc disease? If so, is it at least as likely as not that thoracic spine degenerative disc disease had its onset in service or is otherwise related to the appellant’s active service? If not, is it at least as likely as that thoracic spine degenerative disc disease was proximately due to or the result of the appellant’s service-connected chronic thoracic sprain, history of right fifth rib contusion with costochondral junction mass, and/or osteophyte formation? If neither, is it at least as likely as not that thoracic spine degenerative disc disease was aggravated (permanently made worse) by the appellant’s service-connected chronic thoracic sprain, history of right fifth rib contusion with costochondral junction mass, and/or osteophyte formation? If aggravation is found, the examiner must attempt to establish a baseline level of severity of thoracic spine degenerative disc disease prior to aggravation. In providing the requested opinions, the clinician should review the relevant evidence of record, to include (a) the November 2011 VA examination report; (b) the May 2012 clinical note from Dr. D.O.; (c) the September 2013 VA examination report; (d) the October 2013 VA medical opinion; and (e) the September 2018 medical opinion from J.B. The examination report should include the range of motion of the thoracolumbar spine in degrees. The examiner must, to the extent practicable, specifically measure both active and passive range of motion, in weight-bearing and nonweight-bearing, as required by 38 C.F.R. § 4.59. If any such testing cannot be performed on the joint at issue, he or she should state so and provide an explanation. Additionally, the examiner should comment on the extent of any functional impairment resulting from painful motion, weakness, fatigability, and incoordination. If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. A clear rationale for all opinions must be provided. (Continued on the next page)   Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the appellant, to what extent, if any, such flare-ups affect functional impairment. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.