Citation Nr: 20028035 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 18-00 085 DATE: April 22, 2020 REMANDED 1. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected left leg distal fibula fracture, is remanded. 2. Entitlement to service connection for a thoracolumbar spine disorder, to include as secondary to service-connected residual left leg distal fibula fracture, is remanded. 3. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected residual left leg distal fibula fracture, is remanded. 4. Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected residual left leg distal fibula fracture, is remanded. 5. Entitlement to service connection for bilateral foot fungus is remanded. 6. Entitlement to service connection for residuals of heat stroke is remanded. REASONS FOR REMAND The Veteran served in the Air National Guard, from September 1969 to June 2010, including a period of active duty for training from November 1969 to March 1970 and active duty from December 1990 to April 1991. These matters come to the Board of Veterans’ Appeals from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In February 2020, the Veteran presented testimony via video conference hearing before the undersigned Veterans Law Judge. With respect to all the claims on appeal, remand is required to attempt to obtain private medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2019). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). At his February 2020 Board hearing the Veteran stated he has received treatment from a private physician for a long time because if he did not pass his physical, he would have lost his job. On remand, VA should undertake reasonable efforts to obtain the outstanding private records. 1. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected left leg distal fibula fracture, is remanded. The Board finds that remand is warranted for an adequate VA examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). During his February 2020 Board hearing the Veteran believed his cervical spine disorder was a result of an in-flight incident that occurred during active duty or his service-connected left leg disorder. The Veteran received a VA examination in October 2013. The examiner diagnosed cervical spine degenerative joint disease and opined that it was less likely as not proximately due to or the result of the Veteran’s service-connected condition. The examiner explained, despite adequate conservative care and good maintenance of overall alignment the distal third tibia fracture failed to unite adequately, but that there was no documentation of prolonged ataxic or unstable gait in the file. The examiner noted without an initial exam from before the nonunion repair surgery or without evidence of abnormal gait the examiner cannot opine that the cervical spine disorder is related to his service-connected residual left leg distal fibula fracture. A May 2014 private physician letter documents the Veteran has experienced ongoing neck pain since service. After undergoing electrodiagnostic testing the physician found an old left C6 root injury. The physician opined it is within a reasonable degree of medical probability, greater than 50-50 chance, that these findings are related the Veteran’s 1987 injury in service. The physician did provide a rationale. The Veteran received an additional VA examination in May 2016. The examiner diagnosed degenerative arthritis of the spine and opined that it is less likely than not proximately due to or a result of the service-connected disability. The examiner explained available treatment records do not support antalgic gait or altered weight bearing pattern from the left lower leg condition and noted that peer reviewed medical literature does not support a link between a remote lower extremity fracture subsequently causing neck degenerative arthritis. The examiner also opined that the neck disorder was not aggravated due to the service-connected disability as there is no evidence of an antalgic gait or gait abnormality related to the in-service leg injury. The October 2013 and May 2016 examiners did not address a direct service connection or aggravation. Remand is thus required. 2. Entitlement to service connection for a thoracolumbar spine disorder, to include as secondary to service-connected residual left leg distal fibula fracture, is remanded. The Board finds that remand is warranted for a VA examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr, 21 Vet. App. at 311. Generally, a medical opinion should address the appropriate theories of entitlement. Stefl, 21 Vet. App. at 123-24. The Veteran received a VA examination in October 2013. The examiner diagnosed thoracolumbar degenerative joint disease and opined that it is less likely as not proximately due to or the result of the Veteran’s service-connected left leg distal fibula fracture. The examiner explained that there is no documentation of prolonged ataxic or unstable gait in the file and there is no evidence between the injury and the 2003 surgical intervention. The examiner did not give a rationale or discuss aggravation. The Veteran received an additional VA examination in May 2016. The examiner opined that the claimed back condition is less likely than not aggravated beyond a natural progression as a result of the in-service leg injury. During his February 2020 Board hearing the Veteran indicated his back disorder was a result of an in-flight incident that occurred during active duty. At the hearing he reported he has back pain. Further he reported he overcompensates due to the pain in his leg. Accordingly, remand is required. 3. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected residual left leg distal fibula fracture, is remanded. The Board finds that remand is warranted for a VA examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr, 21 Vet. App. at 311. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pain alone, however, can serve as a disability for VA compensation purposes if the pain results in functional impairment that affects earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). The Veteran received a VA examination in October 2013. The examiner noted the only diagnosis for the left hip is pain and thus provided no nexus opinions. The Veteran received an additional VA examination in May 2016. The examiner found there was no diagnosed left hip disorder. Accordingly, remand is needed for a VA examination to determine whether the Veteran’s pain results in functional impairment that affects the Veteran’s earning capacity.   4. Entitlement to service connection for a left ankle disorder, to include as secondary to service-connected residual left leg distal fibula fracture, is remanded. The Board finds that remand is warranted for an adequate VA examination. Barr, 21 Vet. App. at 311. Where the Veteran has provided competent and credible lay testimony, an examiner cannot ignore that lay evidence. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). A medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). VA provided an examination in October 2013. The examiner diagnosed ankle degenerative joint disease and opined that it was less likely as not the result of the Veteran’s service-connected condition, noting there was no evidence of abnormal gait. The examiner did not provide an aggravation opinion. During the February 2020 Board hearing the Veteran indicated he believed his left ankle disorder could be related to his service-connected left leg distal fibula fracture or the in-service flight incident that occurred. First, the examiner failed to address direct service connection. Second, the examiner failed to address the Veteran’s lay statements. Next, the examiner did not give an adequate rationale or discuss aggravation. In an August 2011 statement the Veteran alleged his left ankle disorder is a result of the in-service airplane accident. Accordingly, remand is required. 5. Entitlement to service connection for bilateral foot fungus is remanded. Remand is required for an addendum opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). At the February 2020 Board hearing the Veteran testified that his bilateral foot fungus disorder occurred during the timeframe when he was on orders. The Veteran stated the evidence of record, including the November 1998 prescription and the January 1999 VA letter, do not document the Veteran’s precise periods of active duty, ACDUTRA, and INACUTRA. Remand is required to attempt to verify the Veteran’s duty dates. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (c) (2019). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records. 38 C.F.R. § 3.159 (c)(2). The Veteran’s DD 214 Form documents active duty from November 1969 to March 1970 and December 1990 to April 1991; however, the Veteran’s Report of Separation and Record of Service also indicates a total period of service beginning in September 1969 to June 2010. There may be additional periods of service including in November 1998, which the Veteran testified is when he received treatment for his foot fungus while in service. The record does not document all the dates of the Veteran’s periods of active duty, ACDUTRA, and INACDUTRA. This must be verified prior to a determination of service connection. 6. Entitlement to service connection for residuals of heat stroke is remanded. This issue must be remanded to secure a VA examination and opinion. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). At his February 2020 Board hearing, the Veteran provided testimony that he suffered a heat stroke while in service and he might be having residuals of the heat stroke. The Veteran described while in Turkey it was 110 degrees, he got exhausted and passed out. His head hit the floor and he was treated with IV fluids. The Veteran’s STRs document in May 1977 the Veteran was treated for head trauma resulting from hitting his head on the floor. Because there is evidence of residuals of heat stroke, an in-service injury, and an indication the disability may be related to service, remand for a VA examination is required. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Specifically, primary care treatment. See February 2020 Board hearing. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Contact any and all sources necessary to confirm the Veteran's active duty, National Guard, and Reserve service. The AOJ must attempt to contact the Veteran's National Guard and/or Reserve units, if possible, the National Personnel Records Center (NPRC), any other appropriate repositories. The RO must provide a precise listing of the Veteran's specific periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA). A retirement points summary will not suffice. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her representative. The AOJ must make as many attempts for these records as are necessary to comply with this VA regulation and document these attempts in a memo to the file if such records are determined to be unavailable. Appropriately notify the Veteran and his representative if unable to obtain these records. 4. After any additional records are associated with the claims file, obtain an addendum opinion to determine the etiology of the Veteran’s cervical spine disorder. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, one must be provided. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed cervical spine disorder had onset in, or is otherwise related to, active military service, to include the in-service injury. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed cervical spine disorder was caused or aggravated by the left leg distal fibula fracture. The examiner must address the following: 1) the Veteran’s statement of pain during and since service; 2) the Veteran’s assertions of an in-service flight incident that occurred in November 1986 that caused his cervical spine disorder; and 3) the May 2014 private physician letter. 5. After any additional records are associated with the claims file, obtain an addendum opinion to determine the etiology of his claimed thoracolumbar spine disorder. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, one must be provided. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each diagnosed thoracolumbar spine disorder had an onset in or was otherwise caused by the Veteran's military service, to include the in-service injury. Second, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each diagnosed thoracolumbar spine disorder is caused or aggravated by service-connected left leg distal fibula fracture. The examiner must address the following: 1) the Veteran’s statement of pain during and since service; 2) the Veteran’s assertions of an in-service flight incident; and 3) the relevant STRs. 6. After any additional records are associated with the claims file, obtain an addendum opinion to determine the etiology of the Veteran’s claimed left hip disorder. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, one must be provided. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed left hip disorder or left hip pain that caused functional impairment of earning capacity had onset in, or is otherwise related to, active military service. Second, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each diagnosed left hip disorder is caused or aggravated by service-connected left leg distal fibula fracture. The examiner must address the following: 1) the Veteran’s statement of pain during and since service; 2) the Veteran’s assertions of an in-service flight incident; and 3) the relevant STRs. 7. After any additional records are associated with the claims file, obtain an addendum opinion to determine the etiology of the Veteran’s left ankle disorder. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, one must be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed left ankle disorder had onset in, or is otherwise related to, active military service. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed left ankle disorder was caused or aggravated by the left leg distal fibula fracture. The examiner must address the following: 1) the Veteran’s statement of pain during and since service; 2) the Veteran’s assertions of an in-service flight incident that occurred in November 1986 that caused his left ankle disorder; and 3) the relevant STRs. 8. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the bilateral foot fungus disorder. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, one must be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral foot fungus had onset in, or is otherwise related to, active duty service. The examiner must consider the following: 1) the Veteran’s assertions of in-service onset with symptoms that have continued since service; 2) Veteran’s February 2020 testimony; 3) the March 2014 private physician letter, 4) October 1998 VA appointment letter; 5) November 1998 prescription; and 6) January 1999 VA letter. 9. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of the claimed residual of a heat stroke. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must comment on whether there are any residuals of heat stroke. Second, the examiner must provide an opinion regarding whether any diagnosed residuals of a heat stroke at least as likely as not (50 percent or greater probability) had onset in, or is otherwise related to, active military service. In providing an opinion, the examiner must address the following: 1) the Veteran’s February 2020 testimony; and 2) STRs documenting a head injury. 10. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2019). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.