Citation Nr: 21067345 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 20-03 013 DATE: November 4, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for right carpal tunnel syndrome is remanded. REASONS FOR REMAND The Veteran had service in the United States Coast Guard between August 1968 and May 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The original rating decisions underlying the present appeal were issued in January 2018 and June 2018. After receiving additional evidence and new applications, the RO confirmed and continued its previous denials in the August 2018 rating decision. 38 C.F.R. § 3.156(b). The issues on appeal were previously before the Board in February 2021, when they were remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See June 2021 supplemental statement of the case (SSOC). 1. Entitlement to service connection for a low back disability is remanded. The Veteran, in essence, contends that he is entitled to service connection for a lumbar spine disability. He maintains that the condition is due to being on his feet for prolonged periods in association with his duties during his career in the U.S. Coast Guard, as well as sustaining an injury during his service. He was recently afforded a VA examination in May 2021; however, the Board finds that the rationale provided by the examiner is inadequate. In the May 2021 examination report, the examiner noted that a 1970 diagnosis of a lumbosacral strain was associated with the Veteran's claimed condition. The Veteran indicated that he was not treated for back pain during his service, and the examiner stated that the onset of his post-service treatment was noted in 2017. The Veteran reported that his symptoms had worsened since the onset of his condition, and that he managed daily pain with over-the-counter medication. The examiner documented that a March 2018 x-ray showed mild straightening of normal lordosis and grade 1 retrolisthesis at the L5 to S1 level that was related to his lumbar strain. After listing evidence in the record, the examiner opined that the Veteran's lumbar strain was less likely than not related to his military service. The examiner noted that the condition had an onset documented in 2017, and that there was no documented treatment during service. Although the examiner listed evidence, including records that were cited in the Board's February 2021 remand, and indicated that the evidence was considered in forming an opinion, the examiner failed to specifically address the contentions raised by the Veteran. Importantly, the examiner failed to discuss the Veteran's contention that his condition was due to being on his feet for extended periods during the course of his nearly 29 years of service, and instead relied solely on the absence of documented treatment during service and prior to his initiation of treatment with VA in 2017. The Board notes that the Veteran's assertion that he spent extended periods of time on his feet as part of his duties during service is reasonably consistent with what would be expected of the military occupational specialties he held over his career. The Board also notes the Veteran's claim that he did not generally seek treatment at his base due to the distance from his home, and instead was treated at a clinic run by his cousin, which was much closer to where he lived when stationed in Puerto Rico. Although the absence of treatment records during and after service can be taken into consideration in an etiological opinion, a negative etiological opinion that is solely based upon the lack of documented evidence of complaints or treatment for symptoms in a veteran's service treatment records is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that the lack of documented hearing loss while in service is not fatal to a claim for service connection.). Although there are no documents evidencing treatment after his separation from service and prior to 2017, the Board notes that the Veteran is competent to report symptoms such as back pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). Particularly given the length of the Veteran's service, the Board finds that the examiner's failure to address the Veteran's claim of low back pain during his service and after his separation render the May 2021 opinion inadequate. The examiner offered only a conclusory opinion which merely stated that there was no documented treatment prior to 2017 and failed to elaborate as to how the lumbosacral strain arose or why the Veteran's claim that the condition was related to his duties during service was less likely than not a causative factor. See Stelf v. Nicholson, 21 Vet. App. 120, 125 (2007) (the Board may not rely on a medical examiner's conclusory statements if they lack supporting analysis). Under the circumstances, another remand is necessary so that an addendum opinion can be obtained which fully addresses all of the relevant evidence of record and provides an adequate rationale for the opinions rendered. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). 2. Entitlement to service connection for right carpal tunnel syndrome is remanded. The Veteran, in essence, contends that he is entitled to service connection for a right wrist disability. He maintains that the condition is due to using Morse code keys and teletype machines to send and receive messages over approximately 15 years during service. As noted above, he was recently afforded a VA examination in May 2021; however, the Board finds the rationale provided by the examiner inadequate. In the May 2021 examination, the examiner noted a diagnosis of right carpal tunnel syndrome, with a date of diagnosis of 1978. The Veteran reported that his symptoms began during his service, and indicated that he was treated by his cousin until he left Puerto Rico in 1985. He claimed that he began treatment for the condition in the United States in 2018, and denied treatment for the condition between 1985 and 2018. The examiner noted that there were no available records of the Veteran's treatment in Puerto Rico, and that he reported daily numbness and tingling of his hand, with use of a wrist brace at night. The Veteran stated that his symptoms had progressed since the onset of the condition. The examiner opined that the Veteran's right carpal tunnel syndrome was less likely than not related to his military service. The examiner stated that the first documented diagnosis of the condition was based on a 2018 electromyography (EMG) study, and that there was no treatment during his period of active duty. The examiner indicated that although he reported treatment by his cousin in the 1970's, there were no records of treatment until 21 years after his separation from service. Much like the rationale provided for the negative nexus opinion regarding the Veteran's lumbar spine disability, discussed above, the examiner provided only a conclusory opinion which relied exclusively on the absence of documented treatment to determine that the Veteran's right carpal tunnel syndrome was less likely than not related to his military service. The examiner failed to discuss the effect that repeated use of equipment such as a Morse code key or teletype machine might have in the development of carpal tunnel syndrome, which would seem to be especially important considering his diagnosis is solely present in his dominant extremity. In failing to address the statements provided by the Veteran regarding his history of symptomatology and the effects of his required tasks during service, the examiner provided an inadequate opinion. See Dalton, supra; Ledford, supra; Jandreau, supra; and Stelf, supra. Accordingly, the Board finds that another remand is necessary so that an addendum opinion can be obtained which fully addresses all of the relevant evidence of record and provides an adequate rationale for any opinion rendered. See Barr, supra. These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed. make arrangements to provide the record on appeal to an appropriately qualified clinician for purposes of obtaining a medical opinion as to the nature and etiology of any lumbar spine disability that the Veteran may have had during the period on appeal. After reviewing the record, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any lumbar spine disability diagnosed during the period on appeal had its onset in, or is otherwise related to, the Veteran's period of military service. In doing so, the clinician should specifically discuss the Veteran's statements regarding the requirement to stand and be on his feet for prolonged periods of time over the course of many years during his service. The clinician should also discuss the Veteran's report of prolonged symptomatology of back pain. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The clinician is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The clinician is asked to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. The clinician must provide a complete rationale for all opinions expressed. If the clinician cannot provide the requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. Specifically, the clinician must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large. 3. Also make arrangements to provide the record on appeal to an appropriately qualified clinician for purposes of obtaining a medical opinion as to the nature and etiology of any right wrist disability that the Veteran may have had during the period on appeal. After reviewing the record, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any right wrist disability diagnosed during the period on appeal had its onset in, or is otherwise related to, the Veteran's service. In doing so, the clinician should specifically discuss the Veteran's statements regarding his work using a Morse code key and teletype machine on a regular basis for a period of approximately 15 years during service. The clinician should also discuss the Veteran's report of prolonged right wrist symptoms. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The clinician is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the clinician is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. The clinician must provide a complete rationale for all opinions expressed. If the clinician cannot provide the requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. Specifically, the clinician must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a SSOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ferguson, 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.