Citation Nr: 20042046 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 06-09 165 DATE: June 19, 2020 REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for peripheral neuropathy, to include as due to Agent Orange exposure and/or as secondary to a neck or low back disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1955 to June 1968, with service in Vietnam. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In February 2006, the Veteran testified at a hearing held before a Decision Review Officers (DRO) at the RO. In July 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. The Veteran contends he was involved in an airplane crash during service. See February 2006 DRO hearing transcript. The Board finds that this in-service event has been substantiated. During the Veteran’s July 2014 Board hearing, he testified that while he was stationed at McCoy A.F.B., Florida (formally known as Pinecastle A.F.B., Florida), he was in an F-89 fighter jet that crashed when the pilot had thought he had seen smoke and shut down the engines. He testified that he thought it happened probably in April 1958. Following the Board’s September 2017 remand, the agency of original jurisdiction (AOJ) contacted the Air Force Historic Research Agency (AFHRA), who noted that the Veteran was assigned to the 76th Fighter Interceptor Squadron when they arrived at McCoy A.F.B., Florida in a December 2017 email correspondence. An extract from the official unit histories of the Veteran’s squadron note that in March 1958, an F-89H aircraft belly landed on the runway due to smoke and possible fire in the cockpit. An Administrative Decision by the RO was that the event could not be conceded, primarily because the Veteran described the landing gear not coming down during this crash, but the description of the crash included that the landing gear was up. In a May 2019 decision, the Board found that this erroneous detail does not abrogate the fact that the essential details of the crash have been verified. Thus, the Board found that AFHRA had adequately verified the Veteran’s claimed in-service event, and it was conceded. 1. Entitlement to service connection for a neck disorder and low back disorder is remanded. Initially, although the Board regrets further delay, remand is required to obtain adequate VA examination addendum opinions. 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). In order for the examination to be adequate, when a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In a May 2011 VA examination report, the examiner provided a positive nexus opinion that related the back and neck disorders to the in-service plane crash. The examiner did not provide an explanation and did not address relevant service treatment records. In September 2014, the Board thus found this opinion inadequate and remanded for addendum opinions. In a June 2015 addendum opinion, the examiner provided negative nexus opinions regarding all disabilities, but provided circular supporting rationale. Accordingly, in September 2017, the Board remanded these matters for another VA addendum opinion. In a February 2018 addendum opinion, the examiner noted a review of relevant records and opined that the evidence did not substantiate a change in the 2015 opinions provided on the neck and low back issues. The examiner opined that the Veteran’s neck and low back symptoms were less likely than not related to his time in service because there was no documentation of chronic neck or low back pain during his time in service. The Board found the 2018 opinions inadequate. The 2018 examiner did not provide a supporting explanation other than the lack of documentation of neck or low back pain during service- the examiner did not address the Veteran’s theory that that he would twist improperly when entering and exiting the aircraft, which would bring on an attack lasting up to three or four days and that following the airplane crash he was told that he would be grounded if he sought treatment. The examiner also did not address STRs that show treatment for a low back injury. The Veteran was afforded VA examinations in October 2019 for the cervical spine, thoracolumbar spine, and peripheral nerves in response to the May 2019 BVA remand. The examiner stated in an addendum opinion that the Veteran’s STRs did not contain evidence of injury due to the plane crash and that there was no evidence in any of the STRs to confirm medical evaluation, treatment, or diagnosis of injury to the back or neck. The examiner also stated that there was no medical evidence or studies that would prove a causative relationship between entering/exiting an aircraft and the development of back or neck problems. The examination is inadequate as it failed to address the complaints of back pain in the STRs. “Occasional sore back,” was noted on the separation examination and “acute low back pain,” was noted in the Veteran’s STRs. November 1960 treatment records indicate that the Veteran complained of “stiff back,” and “recurrent back pain” was noted in a treatment record from December 1960. There is also evidence in the STRs that the Veteran consulted with the Lockbourne flight surgeon, confirming his statements from the February 2006 hearing that he consulted with a flight surgeon regarding his injuries from the plane crash. The examiner also noted that there was no evidence of injury following the plane crash, however, the Veteran stated in a February 2006 hearing before a hearing officer that he did not report his conditions more aggressively because he was told that if he sought further treatment, he would be grounded. The examiner did not address this assertion despite it being noted in the May 2019 BVA remand. The October 2019 opinion is also inadequate as it does not properly address the Veteran’s lay assertions regarding his improper entering and exiting of the plane. The Veteran stated in the February 2006 hearing that he had developed a habit of entering and exiting the plane incorrectly, causing him to twist his back, resulting in painful spasms for days. The examiner did not address whether this improper technique would lead to back or neck strain and instead only addressed whether generally entering/exiting the plane would lead to injury. The examiner also simply stated that there was no current medical evidence to connect the action of entering/exiting a plane and the development of a back or neck injury. No rationale is provided beyond stating that reviewed medical literature did not support of positive etiological opinion. Consequently, the Board finds that a remand is required in order to provide the Veteran another VA opinion. 2. Entitlement to service connection for peripheral neuropathy, to include as due to Agent Orange exposure and/or as secondary to a neck or low back disorder, is remanded. Remand is required to obtain an adequate VA examination 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). In order for the examination to be adequate, when a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). An April 2011 VA examination report contained a positive nexus opinion regarding peripheral neuropathy but provided no supporting explanation. The September 2014 Board remand found this examination inadequate. In the February 2018 opinion regarding peripheral neuropathy, the examiner stated that the Veteran’s documented idiopathic peripheral neuropathy is at least as likely as not related to herbicide exposure during his time in service. No rationale was provided, rendering this opinion inadequate as well. In October 2019 the Veteran underwent a peripheral nerve VA examination and was diagnosed with bilateral upper extremity radiculopathy. This examination did not contain an etiological opinion and an April 2020 addendum opinion was provided. In the April 2020 opinion, the examiner found that the Veteran did not have a diagnosis of neuropathy but rather a diagnosis of radiculopathy that is caused by his neck condition. The examiner then stated that the “undiagnosed peripheral neuropathy” is not caused by service or exposure. This addendum opinion is inadequate as it failed to address several medical treatment records and VA examinations in which the Veteran was diagnosed with polyneuropathy or peripheral neuropathy. In an April 2011 VA examination, the Veteran was diagnosed with motor sensory polyneuropathy. The June 2015 examination did not refute the diagnosis of polyneuropathy while the February 2018 VA examination addressed the Veteran’s documented idiopathic peripheral neuropathy. February 2012 medical treatment records indicate that the Veteran was diagnosed with and being treated for sensory peripheral neuropathy. The examiner also only diagnosed the Veteran with radiculopathy of the upper extremities and did not address medical records in which the Veteran reported tingling in his feet as well as the Veteran’s lay testimony from the hearing transcript which describes symptoms of neuropathy in his feet. In the February 2006 hearing, the Veteran described burning and tingling in his feet that began after walking through land treated with Agent Orange. The examiner also ultimately failed to provide any rationale for her statements. Though she denied that the Veteran had peripheral neuropathy she still stated that the Veteran’s “undiagnosed peripheral neuropathy” was not related to service or exposure without supporting evidence. The examiner also related the Veteran’s bilateral upper extremity radiculopathy to the Veteran’s neck condition but does not provide and medical evidence, rationale, or support. As such this addendum opinion is insufficient and the issue must be remanded for an adequate opinion. 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 be clearly 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. 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. After any additional records are associated with the claims file, obtain an addendum opinion from a qualified VA examiner regarding the etiology of the Veteran’s neck disorder. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. An examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. The examiner is requested to provide the following opinions: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s neck disorder had onset in, or is otherwise related to, active service, to include the Veteran’s conceded 1958 airplane crash landing and the repetitive nature of entering and exiting aircrafts improperly? The examiner must address the following: 1) the Veteran’s STRs including Reports of Medical Examinations (RME) and Reports of Medical History (RMH) showing a normal spine and denials of recurrent back pain; b) the Veteran’s STRs particularly from October and November 1960 showing treatment for back pain; c) the 1968 separation RME where the Veteran reports an occasional sore back; d)reserve records including RMEs and RMHs showing normal clinical evaluation of the spine and denying back pain or indicating back trouble throughout the 1970s; e) the Veteran’s statement that on occasion he would twist improperly when entering and exiting an aircraft which would bring on an attack lasting up to three or four days; f) the Veteran’s conceded 1958 in-service airplane crash; g) the June 2015 VA addendum opinion; h) the February 2018 VA addendum opinion; and g) the 2019 opinion. 4. After any additional records are associated with the claims file, obtain an addendum opinion a qualified VA examiner regarding the etiology of the Veteran’s low back disorder. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. An additional examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. The examiner is requested to provide the following opinions: Is it at least as likely as not (a 50 percent or greater probability) that the low back disorder had onset in, or is otherwise related to, active service, to include the Veteran’s conceded 1958 airplane crash landing and the repetitive nature of entering and exiting aircrafts improperly? The examiner must address the following: 1) the Veteran’s STRs including Reports of Medical Examinations (RME) and Reports of Medical History (RMH) showing a normal spine and denials of recurrent back pain; b) the Veteran’s STRs particularly from October and November 1960 showing treatment for back pain; c) the 1968 separation RME where the Veteran reports an occasional sore back; d)reserve records including RMEs and RMHs showing normal clinical evaluation of the spine and denying back pain or indicating back trouble throughout the 1970s; e) the Veteran’s statement that on occasion he would twist improperly when entering and exiting an aircraft which would bring on an attack lasting up to three or four days; f) the Veteran’s conceded 1958 in-service airplane crash; g) the June 2015 VA addendum opinion; h) the February 2018 VA addendum opinion; and g) the 2019 opinion. 4. After any additional records are associated with the claims file, obtain an addendum opinion from a qualified VA examiner regarding the etiology of the Veteran’s peripheral neuropathy. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. An additional examination should be performed if deemed necessary by the individual providing the opinion. The examiner is requested to provide the following opinions: Is it at least as likely as not (a 50 percent or greater probability) that peripheral neuropathy had onset in, or is otherwise related to, active service, to include the Veteran’s conceded 1958 airplane crash landing and/or to include his exposure to Agent Orange during Vietnam? Is it at least as likely as not that the Veteran’s peripheral neuropathy is caused or aggravated by his neck and/or back disorders? 5. 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 Ashley Ki 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.