Citation Nr: 21000052 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-26 535 DATE: January 4, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran had active duty service from November 1979 to September 1981. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 Rating Decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Board videoconference hearing before a Veterans Law Judge (VLJ) in October 2018. A transcript of that hearing as been associated with the claims file. In correspondence dated in October 2020, the Veteran was notified that the VLJ who conducted her October 2018 hearing was no longer employed at the Board, and was given the opportunity to testify before another VLJ. However, in correspondence received in November 2020, the Veteran indicated that she did not want another hearing and directed the Board to consider her case based on the transcript of record. The Veteran seeks entitlement to service connection for disabilities of the cervical spine and the lumbar spine. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. These claims were previously remanded by the Board in May 2019 for additional development. In this May 2019 Remand, the Board noted that the Veteran was provided with a VA Back (Thoracolumbar Spine) Conditions examination in June 2014, at which time she was diagnosed as having degenerative joint disease of the thoracic spine (with a date of diagnoses in the early 1980s) as well as intervertebral disc syndrome (IVDS) with radiculopathy (with a date of diagnosis in 2014). However, the VA examiner opined that these disabilities were less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the VA examiner simply stated that, “Military medical records do not show complaint or evaluation of back problems during her time in service.” The Board’s May 2019 Remand further noted that the Veteran was provided with a VA Neck (Cervical Spine) Conditions examination in November 2014, at which time she was diagnosed as having degenerative disc disease of the cervical spine (with a date of diagnosis in September 2002), spinal stenosis (with a date of diagnosis in September 2014), and spondylosis of the cervical spine (with a date of diagnosis in September 1993). However, the VA examiner opined that these disabilities were less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the VA examiner explained that “there is no evidence of chronic cervical pathology in active duty.” Although the VA examiner acknowledged that the Veteran complained of left leg weakness and stiff neck during a March 1981 gynecological examination, a subsequent neurology consult placed for left leg weakness later that month reviewed no neck pathology, while the August 1981 Report of Medical Examination at separation documented a normal upper spine examination. The Board’s May 2019 Remand then determined that these VA examinations were inadequate because they failed to address all of the documented complaints of spine symptomatology in service. For instance, a February 1981 Emergency Care and Treatment note indicated that the Veteran complained of lower quadrant abdominal pain which radiated into her lower back and left leg. The March 1981 gynecological clinic note indicated marked weakness in the left leg during hip flexion. Another Emergency Care and Treatment note in July 1981 indicated that the Veteran again sought treatment for abdominal and back pain. Indeed, the Board found that the June 2014 negative nexus opinion was particularly problematic, as the VA examiner’s supporting rationale was that, “Military medical records do not show complaint or evaluation of back problems during her time in service.” As such, the Board remanded these issues in order to obtain an addendum medical opinion to address the nature and probable etiology of the Veteran’s diagnosed disabilities of the cervical and lumbar spine. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premises are not probative). Specifically, the Board’s Remand instructions directed that, in rendering the requested rationale, the examiner must consider the Veteran’s in-service complaints of neck, back, and left leg symptomatology in February 1981, March 1981, and July 1981, as well as her lay statements regarding continuity of symptomatology since service and post-service symptoms documented prior to her September 1993 motor vehicle accident. Pursuant to the Board’s May 2019 Remand directives, the Veteran was provided with additional VA Back (Thoracolumbar Spine) Conditions and Neck (Cervical Spine) Conditions examinations in June 2019. The VA Back (Thoracolumbar Spine) Conditions examination diagnosed the Veteran as having degenerative arthritis of the lumbar spine as well as intervertebral disc syndrome and radiculopathy of the right lower extremity. Furthermore, at the time of the examination, the Veteran reported to the VA examiner that she continued to have back pain since her onset of in-service back pain. However, the VA examiner opined that the Veteran’s diagnosed degenerative arthritis of the spine as well as intervertebral disc syndrome and radiculopathy were less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the VA examiner explained that: During service, condition was acute only. There is no evidence of chronicity of care during service or immediately after service. A nexus has not been established. Review of STR shows complaints of left leg weakness in March 1981 and abdominal/back pain in July 1981. It is noted that weakness is documented after laparoscopic surgery in February 1981. Neurology exam dated 03/12/1981 noted bilateral psoas weakness bilaterally of 4-4+/5 and questioned effort. There was also documentation of non-anatomical sensory complaints. SM reports that she did not seek any treatment for her back pain until the 1990's. There was a prior opinion that condition was at least as likely incurred in or caused by the claimed in-service condition. However, as I stated above, there is no evidence of chronicity of care during service of this condition or immediately after service. Also claimant's current complaint is pain in the right leg. Service records document weakness in the left leg. Claimant did not seek treatment for back pain until sometime after discharge from service. The VA Neck (Cervical Spine) Conditions examination diagnosed the Veteran as having degenerative arthritis of the cervical spine. Furthermore, at the time of the examination, the Veteran reported to the VA examiner that she continued to experience neck pain after service, that she underwent medical imaging after service which showed a bulging disc, and that she was treated by a “Dr. Solomon” in 1982, who prescribed medication for the condition. The Board emphasizes that this alleged treatment occurred prior to the Veteran’s 1993 motor vehicle accident. However, the VA examiner opined that the Veteran’s diagnosed degenerative arthritis of the cervical spine was less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the VA examiner explained that: There is evidence of claimant complaining of neck stiffness on 03/11/1981 but no diagnosis is noted in the STR. Review of claimant's outside records reveal diagnosis of herniated disc in cervical spine after a car accident in the early 90's. There is evidence of chronicity of care for cervical neck pain but this occurs after the car accident. Unfortunately, the Board again finds that the rationale provided by the VA examiner is inadequate. Crucially, the VA examiner did not address the Veteran’s lay statements regarding continuity of symptomatology since service or post-service symptoms documented prior to her September 1993 motor vehicle accident, as explicitly directed in the Board’s May 2019 Remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the Veteran, as a matter of law, the right to compliance with the remand orders). Indeed, the rationales offered in support of the examiner’s negative nexus opinions were based largely on a lack of chronicity of care of these conditions immediately after service, and suggested that there was no evidence of care until after the Veteran’s 1993 motor vehicle accident. However, the Veteran reported to the examiner that she received treatment for neck/back pain following separation from service but prior to the 1993 motor vehicle accident. Similarly, the Veteran testified at her October 2018 Board videoconference hearing that she continued to experience extreme neck pain that radiated into her shoulder blades after discharge from service, and that she was diagnosed as having herniated and/or bulging discs at Raleigh General Hospital in approximately early 1982, although the hospital no longer had these records of treatment. An opinion based on the absence of treatment records without consideration of a veteran's competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service); see also, Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006) (holding that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Board emphasizes that the lack of medical documents immediately following service is not fatal to the claims, and that the examiner should have addressed the Veteran's lay evidence of continuity of symptomatology since service, as explicitly directed in the May 2019 Remand instructions. Moreover, the VA June 2019 VA examiner’s rationale indicated that, “Review of claimant's outside records reveal diagnosis of herniated disc in cervical spine after a car accident in the early 90's. There is evidence of chronicity of care for cervical neck pain but this occurs after the car accident.” However, this is not supported by the record. Indeed, the Veteran’s private treatment records from North Broward Medical Center in Pompano Beach, Florida, indicated that she was involved in a motor vehicle accident in September 1993. Significantly, however, private treatment records dated prior to the September 1993 motor vehicle accident reveal ongoing treatment for cervical spine symptomatology. For instance, treatment records from Wilmington Health Associates in Wilmington, North Carolina, dated in 1988 indicated that the Veteran sought treatment for ongoing musculoskeletal neck pain, for which she was prescribed Tranxene (clorazepate dipotassium). Similarly, a September 1992 treatment note from North Broward Medical Center indicated that the Veteran had a history of “some cervical trauma” and “some cervical pain.” An opinion based on an inaccurate factual premise renders a VA examination inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). As noted in its May 2019 decision, the Board acknowledges that in a “Medical Nexus Statement” boilerplate form dated in October 2018, a private physician checked a box indicating there was at least a 50 percent likelihood that the Veteran’s lumbar spine condition and left lower extremity radiculopathy began during or as a result of her time in active duty military service. In support of this conclusion, the physician simply wrote that, “Reports of pain and weakness on neurological exam consistent with continual pain complaints.” The Board finds that this reasoning alone, without a discussion of the specific underlying diagnoses to which the physician is referring, is insufficient to warrant a grant of entitlement to service connection. However, in its remand instructions, the Board directed the examiner to specifically reference and discuss this private “Medical Nexus Statement”. The Board notes that the examiner who conducted both the June 2019 VA Neck (Cervical Spine) Conditions and VA Back (Thoracolumbar Spine) Conditions examinations did not reference or discuss this private opinion. As such, on remand, the Veteran should be provided with another VA examination accompanied by adequate VA opinions as to the likely etiologies of her currently diagnosed degenerative arthritis of the cervical spine, degenerative arthritis of the cervical spine, and IVDS. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with an appropriate examiner to assess the nature and etiology of her diagnosed degenerative joint disease of the thoracic spine, intervertebral disc syndrome (IVDS) with radiculopathy, degenerative disc disease of the cervical spine, spinal stenosis, and spondylosis of the cervical spine. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a thoracolumbar spine and/or cervical spine disability, to include diagnosed degenerative joint disease of the thoracic spine, IVDS with radiculopathy, degenerative disc disease of the cervical spine, spinal stenosis, and/or spondylosis of the cervical spine, that was/were caused by, incurred in, or otherwise related to her period of active service from November 1979 to September 1981. Complete rationales must be provided for the opinions proffered. In rendering the requested rationales, the examiner must consider the Veteran’s in-service complaints of neck, back, and left leg symptomatology in February 1981, March 1981, and July 1981. Moreover, the examiner must consider and address the Veteran’s various lay statements regarding continuity of symptomatology since service as well as post-service symptoms documented prior to her September 1993 motor vehicle accident. Specifically, the Veteran indicated that she continued to experience neck and back pain after service, that she underwent medical imaging after service which showed a bulging disc, and that she was treated by a “Dr. Solomon” in 1982, who prescribed medication for the condition. Similarly, the Veteran testified at her October 2018 Board videoconference hearing that she continued to experience extreme neck pain that radiated into her shoulder blades after discharge from service, and that she was diagnosed as having herniated and/or bulging discs at Raleigh General Hospital in approximately early 1982. Treatment records from Wilmington Health Associates in Wilmington, North Carolina, dated in 1988 indicated that the Veteran sought treatment for ongoing musculoskeletal neck pain, for which she was prescribed Tranxene (clorazepate dipotassium), while a September 1992 treatment note from North Broward Medical Center in Pompano Beach, Florida, indicated that the Veteran had a history of “some cervical trauma” and “some cervical pain.” Additionally, the VA examiner is asked to specifically reference and discuss the October 2018 “Medical Nexus Statement” in which a private physician indicated that there was at least a 50 percent likelihood that the Veteran’s lumbar spine condition and left lower extremity radiculopathy began during or as a result of her time in active duty military service on the basis that her reports of pain and weakness upon neurological examination were consistent with her continual pain complaints. The examiner is advised that the Veteran is competent to attest to observable symptoms, such as pain. If there is a medical basis to support or doubt the Veteran’s reports of symptomatology, then the examiner should provide a fully reasoned explanation. If the examiner is unable to render any opinion without resorting to speculation or if the examiner finds the Veteran is not credible for any reason, then a complete explanation must be provided. In formulating these opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. 2. After the above actions have been completed, readjudicate the Veteran's claims. If any claim remains denied, then issue the Veteran and her attorney a   Supplemental Statement of the Case. Afford her an appropriate period of time within which to respond thereto. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.