Citation Nr: 21065014 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-55 564 DATE: October 22, 2021 ORDER Entitlement to service connection for a low back disorder is denied. REMANDED Entitlement to service connection for peripheral neuropathy of the left lower extremity (LLE), as due to herbicide agent exposure, is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity (RLE), as due to herbicide agent exposure, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran had a low back disability that was shown as chronic in service or manifested to a compensable degree within the applicable presumptive period; or that there was continuity of symptomatology; or that the disability is otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The Board remanded the issues on appeal in April 2021. See BVA Decision (April 2021). The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The Board finds that, regarding the low back disorder, the prior remand directives are met. The RO sent the Veteran a letter requesting he submit authorization to obtain medical records from a private physician. See Subsequent Development Letter (April 2021). No response was received. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where his assistance to VA is necessary). Although no additional VA medical records were associated with the claims file, the Veteran noted at the Board hearing that he had only been to VA to set up care in case he was unable to see his private physician. See Hearing Transcript (February 2021). Those records are already associated with the file. See CAPRI (September 2017); CAPRI (November 2016). There are, therefore, no further VA records to obtain. Additionally, a June 2021 VA spine examination was obtained; the examiner provided a nexus opinion that addressed lay and medical evidence as required by the Board. See BVA Decision (February 2021); C&P Exam (June 2021). Accordingly, the Board finds there has been substantial compliance with is remand directives. 1. Entitlement to service connection for a low back disorder is denied. The Veteran contends that he injured his back in service when he stepped out of the back of a truck missing a stirrup and falling with full gear, and that his back symptoms gradually became apparent over the years. See Hearing Transcript (February 2021). The Board finds the preponderance of the evidence demonstrates that a low back disorder did not have onset during service, did not manifest within one year of service discharge, and is not otherwise related to active service. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The evidence shows there are diagnoses of lumbar spine degenerative arthritis, spinal stenosis, and spondylolisthesis. See C&P Exam (June 2021). Accordingly, the first element of service connection is met. Second, the Board finds that there were in-service complaints of an injury and back pain, but no low back diagnosis or manifestations sufficient to identify a disease entity. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran has provided competent testimony that he injured his back in service when he stepped out of the back of a truck missing a stirrup and falling with full gear. See Hearing Transcript (February 2021); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). The Board finds these statements credible, based on consistency with other evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Notably, in an August 1970 service treatment record (STR), the Veteran reported back pain. See STR Medical (November 2015). The STRs were otherwise silent regarding the low back. Thus, the evidence demonstrates that there may have been injury or pain during service. The second element of service connection is met. Third, the Board finds that the evidence of record does not support a finding that the Veteran's lumbar spine disabilities are related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Initially, there was no diagnosis of a back disability during service, a combination of manifestations sufficient to identify arthritis, or a diagnosis of arthritis within one year of service discharge. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Although the STRs showed back pain, there was no diagnosis in that record and no other STR addressed the low back. See STR-Medical (November 2015). There are no medical records from the year after service discharge. Although the Veteran reported he'd been seeing the same private physician for 30 years, those records are not associated with the claims file. See Hearing Transcript (February 2021). Next, continuity of symptomatology has not been established. See 38 C.F.R. § 3.303(b). The Veteran has asserted that his back pain continued after service and worsened over time. See Hearing Transcript (February 2021). Although competent, the Board does not find this assertion credible as it conflicts with the evidence of record. See Caluza, 7 Vet. App. at 511. Notably, in a May 1972 service discharge Report of Medical History, the Veteran denied recurrent back pain. See STR - Medical (November 2015). In a May 1972 service discharge Report of Medical Examination, the spine was evaluated as clinically normal. See STR- Medical (November 2015). Additionally, when the Veteran filed his first claim for compensation with VA in 2015, he did not include a low back disability; rather, he only claimed hearing loss and tinnitus. See VA 21-526EZ, Fully Developed Claim (September 2015). This evidence conflicts with the assertion that back symptoms were present since discharge. Thus, the Board finds that continuity of symptomatology has not been established. Finally, the evidence of record demonstrates that the low back disabilities are not otherwise etiologically related to an in-service injury or disease. 38 C.F.R. § 3.303(d). In a June 2021 VA examination, the Veteran reported his in-service injury and that he had back pain at the time, which worsened over time. See C&P Exam (June 2021). The examiner reviewed the claims file and opined that the back disorder was less likely as not due to service. The examiner reasoned that if the conditions were due to service, then in a 2016 lumbar spine x-ray report showing "early" degenerative osteophytes and "first degree" retrolisthesis, the findings would have been more severe. The examiner also reasoned that the separation examination showed no conditions or complaints, and determined that it was not physiologically reasonable that this Veteran could have had any spine injury before separation in 1972 that could result in degenerative arthritis in 2016 that would not result in complaints prior to that time. See C&P Exam (June 2021). The Board assigns this opinion significant probative value as it was based upon review of the relevant medical evidence and the examiner provided a supporting explanation that included analysis of the relevant medical and lay evidence. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The Board notes that the other etiological opinions of record are not probative. In an October 2016 VA examination, the examiner opined that the back disorder was unrelated to service, noting that although the STRs showed back pains during service, there are no records that indicate a history of trauma as reported by the Veteran and no medical records that established a longitudinal pattern of recurrent back pain consistent with radiculopathy. See C&P Exam (October 2016). The Board notes that it previously found this opinion inadequate as it solely relied on a lack of medical treatment over the years and did not consider the Veteran's lay statements of continuous back pain; thus, it is not a basis for denial of the Veteran's claim. See BVA Decision (April 2021); McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). In two letters, the Veteran's private physician stated that the Veteran has stabbing pains in his legs that began in 1971 and that he has had back pain over the years with his only known injury to be in 1971. See Medical Treatment Record Non-Government Facility (April 2017); Medical Treatment Record Non-Government Facility (May 2018). The physician did not provide any supporting explanation for these statements; they are thus insufficient upon which to grant service connection. See Stefl, 21 Vet. App. at 124. An August 2018 Disability Benefits Questionnaire filled out by the Veteran's private physician provided diagnoses of a back disability and reiterated the assertions of the two prior letters. See VA Examination (August 2018). Again, there was no supporting explanation for these statements and thus they lack probative value. See Stefl, 21 Vet. App. at 124. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. §5107(b). REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the LLE, as due to herbicide agent exposure, is remanded. 2. Entitlement to service connection for peripheral neuropathy of the RLE, as due to herbicide agent exposure, is remanded. The Veteran contends that his peripheral neuropathy of the lower extremities is due to his herbicide agent exposure in service. See Hearing Transcript (February 2021). The Veteran served at the Udorn Royal Thai Force Base as a security policeman. See Military Personnel Record (November 2015). VA has conceded the Veteran's exposure to herbicide agents. See SOC (September 2017). The Board finds that remand is warranted to obtain compliance with its prior remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall, 11 Vet. App. at 271. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. A "VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate." McKinney, 28 Vet. App. at 30-31. One of the central issues in determining the probative value of a medical opinion is whether the examiner was informed of the relevant facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In an April 2021 remand, the Board directed the RO to obtain a VA examination, finding that an October 2016 VA examination did not address the Veteran's statements that his symptoms began during service and worsened over the course of years. See BVA Decision (April 2021). The Board also noted that there was conflicting evidence of record, because a private physician diagnosed bilateral peripheral neuropathy in a 2018 DBQ, but an October 2016 VA opinion diagnosed radiculopathy. See BVA Decision (April 2021). The Board requested that the examiner conduct testing to clarify the lower extremity diagnoses. See BVA Decision (April 2021). In a June 2021 opinion and July 2021 addendum, a VA clinician opined that there was no right or left lower extremity neuropathy, rather, there was only radiculopathy. See C&P Exam (June 2021); C&P Exam (July 2021). The VA clinician reasoned that a 2017 MRI clearly showed radiculopathy and that there was no objective testing to support a peripheral neuropathy diagnosis. See C&P Exam (June 2021). The examiner did, however, conduct any diagnostic testing as requested by the Board remand. The examiner also did not address the 2018 diagnosis of peripheral neuropathy by the private physician. Accordingly, remand is required to comply with the Board's remand directives. While on remand, the Veteran should be contacted again to attempt to obtain additional treatment records from Dr. HE. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. HE. Make two requests for the authorized records from Dr. HE, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination for his lower extremity disorders. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the diagnosed lumbar spine diagnoses. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to: (a) Whether there is a diagnosis of lower extremity radiculopathy or lower extremity peripheral neuropathy. Either conduct diagnostic testing to confirm the relevant diagnosis or explain why any prior diagnosis is incorrect. Address the October 2016 VA examination diagnosing radiculopathy only, the 2017 MRI, and the 2018 letter and Disability Benefits Questionnaire diagnosing peripheral neuropathy. (b) Whether each of the diagnosed lower extremity nerve disorders at least as likely as not (1) had its onset in service, (2) manifested within one year after service discharge, or (3) is otherwise related to an in-service injury, event, or disease, to include conceded herbicide exposure. Consider whether the Veteran's statements of stabbing pains in his legs since 1971- at least as likely as not represent the onset of any lower extremity nerve disorder in serviceexplain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any medical history is rejected, a complete explanation is required. 3. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.