Citation Nr: 21002357 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-18 398A DATE: January 13, 2021 REMANDED Entitlement to service connection for a thoracic spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to an initial rating in excess of 20 percent for service-connected right knee osteoarthritis is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected left knee osteoarthritis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in April 2013, August 2013, and July 2015 of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a January 2019 Travel Board hearing. A transcript of that hearing is associated with the claims file. This case was previously before the Board in September 2019 when it was remanded for additional development. 1. Entitlement to service connection for a thoracic spine disability is remanded. VA opinions were obtained in April 2020 regarding the nature and etiology of the Veteran’s thoracic spine complaints. The examiner opined that the Veteran’s entrance examination noted a normal variant that did not involve the thoracic spine, but rather, the lumbar spine. The examiner found no evidence of a thoracic spine disability at entrance. Further, the examiner opined that the Veteran’s current thoracic spine disability was less likely than not incurred in or caused by the Veteran’s period of active service. The examiner stated that there was no documentation of a back injury of any kind in the service treatment records and the low back pain noted on the Veteran’s separation examination indicated that he strained his back while weightlifting. The examiner found no indication of a thoracic spine injury in the service treatment records, which would relate to the mid- or upper-back. The examiner also noted that there is no record of evaluation for back pain after service until 2003, when the Veteran reported a 4 month history of back conditions. Unfortunately, the Board finds that this opinion is inadequate to adjudicate the claim with respect to entitlement to direct service connection. Specifically, while the examiner noted that the Veteran’s in-service back strain was related to weightlifting, it is unclear how the examiner determined that the in-service complaint was related to a low back injury rather than a thoracic spine injury. Further, although treatment records do not show evidence of complaints of back pain until 2003, the Veteran competently and credibly reported ongoing back pain since service. Notably, the Veteran indicated that during bootcamp in February 1969, a fellow soldier jumped on his back, knocking him to the ground and fracturing his knees. The Veteran reports ongoing back pain since that incident. This was reiterated by his ex-spouse who indicated that the Veteran wrote to her during bootcamp and notified her of this incident. She further stated that the Veteran was an active water-skier and weightlifter prior to basic training. When he returned from active service, she witnessed him in bed for days due to back pain after such activities. Neither the Veteran nor his ex-spouse indicated that the Veteran’s back pain was limited to his low back. Accordingly, an opinion should be obtained that considers the Veteran’s competent and credible reports of an in-service injury and back pain since service, and addresses whether his current thoracic spine disability is at least as likely as not etiologically related to his reported back injury in February 1969 when a fellow soldier jumped on him, fracturing his knees, or the documented in-service weightlifting back strain. Further, during the Board hearing, the Veteran testified that his service-connected knee disabilities affect the way he walks, which, in turn, bothers his back. Indeed, during the April 2020 VA knee examination, the Veteran reported that his left knee was unstable at times. Accordingly, an opinion regarding secondary service connection should be obtained considering the Veteran’s reports. Entitlement to service connection for cervical spine, headache, left elbow, right elbow, and right shoulder disabilities In correspondence dated in May 2020, the Veteran reported that he was dissatisfied with his April 2020 VA examination. Specifically, the Veteran stated that his appointment started late and was very brief. The Veteran further indicated that the examiner did not fully examine him. Upon review of the April 2020 examination reports, the Board finds that the findings are inconsistent with the Veteran’s competent and credible testimony regarding his claimed disabilities and statements he submitted supporting such, as will be addressed in more detail below. Further, the resulting opinions are inadequate to adjudicate the service connection claims. 2. Entitlement to service connection for a cervical spine disability is remanded. While the Veteran currently reports chronic neck pain, the April 2020 VA examiner found no evidence of pain during range of motion testing and indicated that the Veteran denied flare-ups of cervical spine pain. Additionally, the April 2020 VA examiner opined that the Veteran’s neck disability was less likely than not incurred in or caused by his period of active service. The rationale was that there was no objective evidence of a complaint of neck pain or a neck injury while on active duty. The first evidence of neck complaints is dated in 2014, 45 years after the Veteran’s discharge from service, and the examiner found the x-rays from that time consistent with the Veteran’s age and history of body building. The examiner further noted that none of the personal statements in the record note a change in the Veteran’s physique until 2011 and none of them reference any neck condition. Upon review of the record, the Board has determined that the Veteran submitted a September 2014 statement indicating he had neck pain and headaches following the February 1969 incident during basic training when a fellow soldier jumped on top of him, injuring his back and knees. An October 2014 statement from the Veteran’s ex-spouse supports the Veteran’s contentions of neck pain since that time. The statement indicates that she suspected he had a neck injury because he began having constant headaches after the incident. Accordingly, an opinion should be obtained that considers the Veteran’s competent and credible reports of an in-service injury and neck pain since active service. 3. Entitlement to service connection for headaches is remanded. The April 2020 examiner opined that the Veteran’s headaches were less likely than not incurred in or caused by the Veteran’s period of active service. The rationale was that there was no objective evidence in the medical records of a chronic headache complaint or condition while on active duty. However, the examiner did not address a May 1969 service treatment record noting “pulsating headaches associated with dizzy spells following strenuous exercise”. Such is consistent with the Veteran’s reports of regular headaches following the February 1969 incident and the statement from his ex-spouse stating the same. Accordingly, an opinion should be obtained based on an accurate factual premise. Alternatively, the Veteran submitted an October 2014 opinion from Dr. B.B., D.C., indicating that the Veteran has severe tension headaches due to cervical hypertonicity spasm, joint fixation, and subluxation. As such, the Veteran’s headache claim must be remanded as intertwined with his neck claim. 4. Entitlement to service connection for a left elbow disability is remanded. 5. Entitlement to service connection for a right elbow disability is remanded. The Veteran attributes his current elbow disabilities to trauma endured during basic training. Specifically, he recalled being forced to “low crawl” on his elbows and knees for hours, covering at least 300 yards, as a punishment. This incident resulted in bruised elbows and knees and he remembered his fatigues being worn through in those areas. This incident was followed by the February 1969 incident where the fellow soldier jumped on his back, knocking him to the ground. The April 2020 VA examiner found that the Veteran’s claimed elbow conditions were less likely than not incurred in or caused by the Veteran’s claimed in-service injury because there is no objective evidence of any elbow complaint or condition while on active duty. The examiner found the Veteran’s reports of his in-service experiences credible, but stated that there is no evidence of any elbow injury on his separation examination. As such, the examiner found that the Veteran’s current ulnar nerve entrapment and osteophyte of olecranon process were more likely related to a long history of body building and working in construction rather than one day of activity using his elbows or from jumping into a ditch. An opinion should be obtained that considers the competent and credible reports of the Veteran that he has endured ongoing bilateral elbow pain since his discharge from service, which are supported by the October 2014 statement by the Veteran’s ex-spouse. 6. Entitlement to service connection for a right shoulder disability is remanded. The Veteran submitted an October 2014 private opinion from Dr. B.B., D.C., finding that he has cervicobrachial pain down the shoulders and arms that is “definitely linked to old injuries” in the cervical spine and shoulder tendons. Alternatively, the April 2020 VA examiner found no diagnosis was warranted based on a review of the medical records and an examination revealing no objective findings. The VA examiner did not reconcile her findings with the October 2014 private opinion or the Veteran’s reports of ongoing pain from his neck down his arms. Further, the VA examiner found “no history of any direct trauma to his shoulder” despite the Veteran’s reports of the February 1969 bootcamp incident or his indication that his shoulder began hurting after extensive training on the rifle team for over a year in service. Accordingly, an opinion should be obtained that considers the Veteran’s competent and credible reports of in-service shoulder traumas and the resulting shoulder pain. The Board notes that the Veteran is competent to report that which comes to him through his senses, to include back, neck, head, elbow, and shoulder pain. Furthermore, the Board finds the Veteran’s complaints to be highly credible. Indeed, they are supported by the October 2014 statement of the Veteran’s ex-spouse who knew him both prior to and after his period of active service and witnessed the Veteran’s experiences with pain. Accordingly, opinions should be obtained regarding the nature and etiology of the Veteran’s claimed conditions considering his competent and credible reports of pain since service discharge. 7. Entitlement to an initial rating in excess of 20 percent for service-connected right knee osteoarthritis is remanded. 8. Entitlement to an initial rating in excess of 10 percent for service-connected left knee osteoarthritis is remanded. During a March 2013 VA examination, the Veteran reported being unable to squat or kneel and stated that his knees sometimes lock. Testing revealed some decreased range of motion of the left knee and instability in the right knee. During the January 2019 Board hearing, the Veteran reported that his knees were worse than his current disability ratings, indicating that his reflexes were absent, he experienced locking of the right knee, and that sometimes he was barely able to walk. Accordingly, the Veteran was afforded an April 2020 VA knee examination. Despite the Veteran’s reports of worsening symptomatology since the March 2013 VA examination, the April 2020 VA examiner indicated that the Veteran denied flare-ups of pain, instead indicating that the Veteran had full range of motion without objective evidence of pain during testing, to include with repeat testing. The examiner did not note the Veteran’s complaints of instability, swelling, or locking of either knee. The Board finds this examination report is inconsistent with the Veteran’s competent and credible testimony regarding his current knee symptomatology. Accordingly, the Veteran should be afforded an additional VA examination that considers the Veteran’s reports of pain and the functional impact of his service-connected knee disabilities. 9. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran’s TDIU claim is inextricably intertwined with the Veteran’s claims for service connection and increased ratings. Accordingly, a final decision on the issue of entitlement to a TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain an opinion regarding the nature and etiology of the Veteran’s diagnosed thoracic spine disability. The Veteran’s VA claims file and a copy of this remand should be made available to, and should be reviewed by, the examiner. If the examiner finds that an additional examination is deemed warranted, one should be arranged. The examiner should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a thoracic spine disability that is etiologically related to his period of active service. The examiner should note that the Board finds the Veteran’s report of an in-service back injury when a fellow soldier jumped on his back and knocked him to the ground and complaints of general back pain since service discharge both competent and credible. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a thoracic spine disability that was caused by his service-connected knee disabilities. Specifically, the Veteran reports that his service-connected knees affect his movement and, in turn, affect his back. (c.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a thoracic spine disability that was aggravated by his service-connected knee disabilities. Specifically, the Veteran reports that his service-connected knees affect his movement and, in turn, affect his back. A rationale should be provided for all opinions offered. 2. Obtain an opinion regarding the nature and etiology of the Veteran’s claimed cervical spine, headache, left elbow, right elbow, and right shoulder disabilities. The Veteran’s VA claims file and a copy of this remand should be made available to, and should be reviewed by, the examiner. If the examiner finds that an additional examination is deemed warranted, one should be arranged. For each cervical spine, headache, left elbow, right elbow, and right shoulder disability diagnosed during the appeal period, the examiner should opine: Whether it is at least as likely as not (50 percent probability or greater) that the disability is etiologically related to his period of active service. The examiner should note that the Board finds the Veteran’s report of an in-service injury both competent and credible. Additionally, the Veteran’s reports of in-service right shoulder pain related to shooting a rifle are competent and credible. (a.) Whether it is at least as likely as not (50 percent probability or greater) that the disability was caused by a service-connected disability. Specifically, the Veteran reports that his service-connected knees affect his movement and, in turn, affect his cervical spine. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the disability was aggravated by a service-connected disability. Specifically, the Veteran reports that his service-connected knees affect his movement and, in turn, affect his cervical spine. A rationale should be provided for all opinions offered. 3. Schedule the Veteran for a VA examination with an examiner who has not previously examined the Veteran to determine the current severity of his service-connected bilateral knee disabilities. The Veteran’s VA claims file and a copy of this remand should be made available to, and should be reviewed by, the examiner. All indicated tests and studies should be performed and findings reported in detail. The examiner must test the Veteran’s range of active motion, passive motion, and pain both with weight-bearing and without weight-bearing in each knee. If there is pain on range of motion, the examiner must state at which point pain begins. To the extent possible, the examiner must identify any symptomatology and functional impairments caused by the Veteran’s bilateral knee disability and must discuss the effect of the Veteran’s bilateral knee disorder on any occupational functioning and activities of daily living. The examiner should note all symptoms the Veteran associates with his service-connected knee disabilities. Notably, the Veteran competently and credibly reported locking, swelling, and instability of his knees during the January 2019 Board hearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups of the knees, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (he or she does not have the requisite knowledge or training). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Connor, 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.