Citation Nr: 20047559 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 07-05 920 DATE: July 16, 2020 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from March 1974 to March 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2005 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer at the Board regarding whether a November 1974 accident in which the Veteran fell from the second story of a building was incurred in the line of duty. VA regulations require that the VLJ who conducted a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107; 38 C.F.R. § 20.706. The Veteran was notified in a letter of his options and declined a new hearing in a December 2016 correspondence. These matters were remanded by the Board in May 2012, February 2014, November 2014, and February 2017 for further development. In June 2018, the Board denied service connection for a back disability and entitlement to a TDIU. The Veteran appealed the June 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 Memorandum Decision, the Court vacated the Board’s June 2018 decision with regard to the aforementioned claims and remanded the case to the Board for further development consistent with its decision. 1. Entitlement to service connection for a back disability is remanded. The Veteran asserts that his current back disability, most recently diagnosed as lumbar degenerative disc disease (DDD) with thoracic DDD, had its onset during his active duty service, to include as a result of a documented fall from the second story of a building, or is otherwise related to his active duty service. See Service Treatment Records (STRs), May 2004 claim, September 2017 VA examination report. By way of history, on November 1, 1974, the Veteran was admitted to Port Hueneme Hospital after having fallen approximately 10 feet from the second deck of a building. At that time, he was noted to be semi-comatose, responding only to pain, with a contusion and ecchymosis around the left eye. X-rays taken of the skull, cervical spine, chest, and left hand were obtained and read as negative. He was unconscious throughout his stay at Port Hueneme and was subsequently transferred to the Naval Regional Medical Center at San Diego on or about November 8, 1974. A July 1975 medical board review noted diagnoses of cerebral contusion, post-concussion syndrome headaches, conversion hysteria, manipulative personality, and traumatic avulsion of the left second toenail, and the Veteran was recommended for a return to full duty at that time. At his separation examination in March 1978, the Veteran reported no issues with his spine. See STRs, Service Personnel Records (SPRs). In January 2002, the Veteran presented to a VA medical center complaining of severe back pain that was radiating into both legs. Accompanying records note that he had recently completed a prednisone pulse and that he was intermittently tender at the paraspinous area. He was given a shot of depomedrol and diagnosed with a “an old injury” and narrowed invertebral disc space at L5-S2 and mild degenerative joint disease. At a follow-up one week later in January 2002, the Veteran reported the low back pain and sciatic radiculopathy had completely resolved. The Veteran submitted to VA examinations in July 2012, January 2015, and September 2017. The July 2012 and January 2015 VA examiners relied on a lack of in-service treatment for a back disability in opining that the Veteran’s current back disability was not caused by the in-service fall and otherwise did not have its onset during active duty. As the opinions rely solely on negative evidence, they are inadequate. See Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). The Court, in reviewing the September 2017 VA examiner’s opinion that served as the basis for the June 2018 Board denial, noted the September 2017 examiner did not fully consider the Veteran’s relevant medical history and found it to be inadequate in that regard. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical examination is adequate “where is it based upon consideration of the Veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one”). Specifically, the Court noted the September 2017 VA examiner failed to consider the VA MRI imaging from January 2002 showing degenerative spurring of the thoracolumbar spine related to an “old injury” and the Veteran’s two Social Security Administration (SSA) disability applications from 2003. In his April 2003 SSA application, the Veteran reported that his back disability (arthritis) first bothered him in January 1978 and continued until it rendered him unable to work in July 1999. In his June 2003 SSA application, the Veteran reported having pinched leg nerves causing pain and numbness that began in 1974 and initially began affecting his activities of daily living in 1975 while he was still on active duty. The Court recognized the September 2017 examiner did address the Veteran’s lay statements, but found the examiner’s categorization of the lay statements as “so vague it is difficult to use them” in his opinion to be an inadequate medical rationale. The Board notes the Court also recently issued a decision explaining that a medical examiner, in considering a Veteran’s lay statements such as those noted above, should explain whether “the veteran’s assertions are generally inconsistent with medical knowledge or implausible” and whether “the veteran’s reports about symptoms or an in-service injury align with how the disease or disability is known to develop.” See Miller v. Wilkie, 32 Vet. App. 249, 259-260 (2020). Such medical opinions are necessary for the Board to make credibility determinations regarding lay statements concerning medical issues. Thus, an addendum opinion was ordered by the Court in this case in its November 2019 Memorandum Decision and will be secured on remand. All outstanding treatment records should also be secured. 2. Entitlement to a TDIU is remanded. Finally, the Veteran’s entitlement to a TDIU is inextricably intertwined with the issue of entitlement to service connection for a back disability remanded herein. Accordingly, action on the issue of entitlement to a TDIU is deferred. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Any outstanding records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant treatment records. Then, request an addendum opinion to determine the nature and etiology of the Veteran’s back disabilities. No further examination of the Veteran is required unless the examiner deems it necessary. The entire claims file, including a copy of this remand and the Court’s November 2019 Memorandum decision, should be made available to and reviewed by the examiner. Following a complete review of the claims file, the examiner is asked to address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s back disabilities had their onset during active duty or are otherwise related to service, to include as the result of the November 1974 fall documented in his service treatment records? In addressing this question please discuss: (1) the November 1974 fall injury resulting cerebral contusion and extended loss of consciousness; (2) the January 2002 VA diagnosis of an “old injury” and narrowed intervertebral disc space of L5-S1 with mild degenerative joint disease for which the Veteran was given a depomedrol injection; (3) the August 2003 Internal Medicine Examination (SSA records) that diagnosed a history of pain in the lumbosacral area noting low back pain with radiation to his left lower extremity since the early 1980s; (4) the Veteran’s April 2003 SSA application wherein he asserts the arthritis in his lower back first bothered him in January 1978 and rendered him unable to work in July 1999; (5) the Veteran’s June 2003 SSA application wherein he asserts that his back pain first began in 1974 and was affecting his daily activities by 1975; (6) the Veteran’s April and June 2003 SSA application Work History Reports wherein the Veteran reported generally engaging in employment that required walking, standing, sitting, climbing, stooping, crouching crawling, grasping large objects, writing, and regularly (approximately 1/3 to 2/3 of his work day) lifting between 10 and 50 pounds per day from approximately March 1985 to April 2002; (6) the May 2004 Veteran statement that he was in a coma for 2 years after the November 1974 fall; (7) the Veteran’s June 2013 lay statements (made on VA Forms 21-4142) that the nerve problem in his back has been constant since his 1974 head injury; (8) the April 2014 private medical treatment record wherein the Veteran reported lower back pain with numbness on the right side radiating into the right leg for years; and (9) the Veteran’s November 2006 report to VA providers that had recently fallen and since that time noted low back pain and pain radiating down his left leg. In addressing this question, the examiner must assume items (4) through (9) as true, even despite the absence of “objective documentation.” (b.) Please state whether a nexus between the Veteran’s service and his current back disabilities is “medically consistent” with the symptomatology reported by the Veteran in items (4) through (9) above. A complete rationale must be provided for all opinions. The Veteran’s statements may not be discounted solely on the basis of the lack of confirmation in the medical records. and any reliance on this fact will render the opinion inadequate. If the examiner is unable to provide an opinion without resorting to speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. Merely saying he or she cannot respond will not suffice. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.