Citation Nr: 20021657 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 13-18 490A DATE: March 26, 2020 REMANDED Entitlement to service connection for thoracolumbar spine disability is remanded. Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for right foot disability to include gout is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1975 to August 1985 in the United States Army. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the appeal for additional evidentiary development. The Board notes that the Veteran’s record contains his military personnel records but not all of his service treatment records after numerous attempts to obtain these records. A Formal Finding of Service Record Unavailability was made in July 2012. In cases where service medical records are unavailable, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis of the Veteran’s claims was undertaken with this duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). 1. Service connection for thoracolumbar spine disability is remanded The Veteran contends that he developed a thoracolumbar spine disability as a result of thirty-two parachute jumps during active duty. See VA Form 21-4138 (October 2009). The Veteran’s service treatment records (STRs) reveal that he had a cyst excised from his back. No residual symptoms were noted. A January 1984 STR noted “painful joints” but did not indicate any back symptoms. A July 1985 (Chapter 9) examination noted “broken bones” and listed right femur biopsy. There was no record of any back complaints. Post service treatment note reflects that the Veteran was admitted for “detox” and reported a history of mass on right side of back removed in service. A private examination report dated December 1987 reflects review of systems with the spine as normal. VA treatment records reflect that the Veteran was admitted to a substance abuse treatment program in December 1991 and later released to domiciliary care. There were no documented complaints or findings for abnormal pathology of the back/spine. January 1993 and A January 2000 VA treatment notes reflect, on review of systems, that the Veteran’s back was normal and had full range of motion, respectively. There were no complaints or findings for abnormal pathology of the back. VA received the Veteran’s original VA compensation disability application in January 1992, which did not include any report of a back/spine disability. The first indication of a back disorder is on the Veteran’s informal claim dated in January 2008. He reported that he had degenerative disc disease of the spine related to paratrooper jumps in service and noted that he had been treated in service. See VA Form 21-4138 (January 2008). VA records include a problem list that shows arthralgia and low back pain (lumbago). See Medical Treatment Record – Governmental (March 2008). A March 2010 VA treatment record shows that the Veteran is homeless and that his computerized list of problems included low back pain/lumbago since May 2005. See Medical Treatment Record – Government Facility (May 2010). A November 2013 VA examination reflects that the Veteran denied any history of low back problems and that there were no active back problems. An August 2017 VA treatment note reflect that a chest x-ray was obtained in connection with respiratory complaints that also showed spondylosis of the thoracic spine. An August 2019 VA back examination reflects that there is no diagnosed back disorder. At this time, the Veteran denied back issues “in service or now” and was “unsure why it is being examined today.” The Veteran denied flare-ups of back problems. There was full range of motion. No x-rays were obtained, and the examiner did not address the finding for spondylosis noted in August 2017. After careful review of the evidence of record, the Board finds that remand is necessary to decide the appeal. The August 2019 VA examination is inadequate to decide the appeal because no x-rays were obtained, and the examiner did not address the finding for spondylosis noted in an August 2017 VA treatment note. The examination report indicates that there is no diagnosis (i.e. no abnormal pathology of the spine), which is incongruous with the August 2017 VA treatment record. Therefore, clarification is necessary to decide the appeal. 2. Service connection for cervical spine disability is remanded. The Veteran contends that he developed degenerative disc disease of the cervical spine as a result from thirty-two parachute jumps that he completed during active duty. See VA Form 21-4138 (January 2008). The available STRs reflect no complaints or abnormal pathology of the cervical spine. A July 1985 service separation medical history reflect no neck complaints when otherwise reporting history and medical problems. Neck disorder is first documented in an August 2002 VA medical record, which showed imaging findings for lower cervical degenerative spondylosis. A July 2011 MRI showed spinal stenosis. An August 2019 VA medical opinion reflects that the first indication of cervical degenerative disc disease is in 2011 per an MRI and that “review of the record reveals multiple traumas and incarcerations in the 2000’s following which he complained of neck pain.” Given this, the opinion concluded that “it is much more likely his neck complain is age related and related to his post service trauma.” The examiners concluded that it is less likely than not that the Veteran’s current cervical DDD is etiologically related to service to include as a result of trauma from parachute jumps. The August 2019 examiner noted the Veteran’s reports of neck pain; but he found that DDD or a chronic cervical condition was not evidenced in the Veteran’s service treatment records. The examiner noted that the Veteran experienced multiple traumas in the 2000’s while incarcerated. He opined that “it is much more likely that the Veteran’s current neck complaints are age related and related to his post-service trauma.” The Board finds that the 2019 VA medical opinion is inadequate. First, it is not supported by a complete rationale and makes no mention of the Veteran’s theory of entitlement (parachute jumps causing neck degeneration). Second, it incorrected suggests that there was no documented abnormal cervical pathology prior to a 2011 MRI when an August 2002 VA imaging study of the cervical spine showed cervical degenerative spondylosis. See Medical Treatment Record – Government Facility at 8 (July 2008). Therefore, to ensure that VA has met its duty to assist, remand is necessary to obtain a new medical opinion in this matter. 3. Service connection for right foot condition is remanded. The Veteran contends that he developed a right foot disability as a result of thirty-two parachute jumps that he completed during active duty, and that it was misdiagnosed as gout in service. See VA Form 21-4138 (January 2008). Available STRs reflect that, in August 1984, he was noted to have a rash on both feet. An October 1984 STR reflects that the Veteran reported that he had a fracture of the right leg that developed into myelitis and required treatment. A July 1985 STR noted that the Veteran had right toe pain. The indication was to rule-out gout. Post-separation medical treatment records reflect gout on a December 1991 VA medical report associated with the Veteran’s admission into a VA substance abuse treatment program. Arthralgia is shown on his VA problems list obtained in 2008. A September 1996 treatment record revealed right toe pain. A January 2000 VA treatment note reflects gout and that the Veteran had recently run out gout medication. A VA notation of right foot gout that reoccurs and flares up frequently is shown on May 25, 2010 under pain assessment. More recent VA treatment records indicate joint pain and note a past medical history for gout since November 2017. An August 2019 VA examination report reflects that the Veteran does not have a currently diagnosis associated with the right foot. There was no mention of history of gout involving the right foot. The Board finds that the 2019 VA medical examination report is inadequate. It incorrected suggests that there was no documented abnormal pathology involving the right foot. The August 2019 VA examination report does not account for the May 2010 notation of right foot gout. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). Also, no opinion was rendered as to right foot gout, which has been shown during the appeal period. It is noted that there is no requirement that the Veteran have the claimed disability at the time of an examination or opinion is obtained, only that there has been disability during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim). Therefore, to ensure that VA has met its duty to assist, remand is necessary to obtain a new medical examination and opinion in this matter. The matters are REMANDED for the following action: 1. Given that the Veteran reported during his VA examination in August 2019 that he did not have any back problems and was unsure as to why he was being examined, notify the Veteran that he has a pending claim and that he may withdraw that claim by submitting signed correspondence from him clearing indication a desire to withdraw the back claim that includes his claims number. 2. Obtain the Veteran’s VA treatment records for the period from August 2019 to the Present. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed thoracolumbar spine disability. A copy of the examination notification letter sent to the Veteran in conjunction with his scheduled VA examination, or other appropriate notification evidence showing when he was notified and at what address, should be associated with the claims file. (a.) The examiner should indicate all diagnoses pertaining the thoracolumbar spine and address the diagnosis for spondylosis noted in the August 2017 VA treatment note. (b.) Then, opine on whether it at least as likely as not (a 50% or higher degree of probability) that any diagnosed disability is related to in-service injury or disease to include multiple parachute jumps as theorized by the Veteran. 4. Obtain an addendum opinion addressing the etiology of the Veteran’s diagnosed cervical spine disability. Opine on whether it at least as likely as not (a 50% or higher degree of probability) that any diagnosed disability is related to in-service injury or disease to include multiple parachute jumps as theorized by the Veteran. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed right foot disability to include gout. A copy of the examination notification letter sent to the Veteran in conjunction with his scheduled VA examination, or other appropriate notification evidence showing when he was notified and at what address, should be associated with the claims file. (a.) The examiner should indicate all diagnoses pertaining the right foot during the appeal period, to include gout. (b.) Then, opine on whether it at least as likely as not (a 50% or higher degree of probability) that any diagnosed disability, to include gout, is related to in-service injury or disease to include multiple parachute jumps as theorized by the Veteran. 6. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, 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.