Citation Nr: 21067681 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 10-27 434 DATE: November 5, 2021 REMANDED Entitlement to service connection for a back disorder, to include scoliosis, spondylolysis, and degenerative joint and disc disease of the lumbar spine, is remanded. Entitlement to service connection for a bilateral shoulder disorder, to include as secondary to a back disorder, is remanded. Entitlement to service connection for headaches, to include as secondary to a back disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 19, 1987, to June 24, 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2013. A transcript is of record. The Board most recently remanded the case for additional development in April 2021. The case has since been returned to the Board for appellate review. Upon review, the Board finds that further development is needed prior to adjudication of the issues on appeal. Back Disorder In April 2021, the Board noted that the issue of entitlement to service connection for a lumbar spine disorder posed a medical problem of such complexity that an advisory opinion from an independent medical expert was required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. The Board directed the Agency of Original Jurisdiction (AOJ) to follow the established procedures for requesting an advisory opinion pursuant to 38 U.S.C. § 5109 on remand. In July 2021, the AOJ obtained a medical opinion from a nurse practitioner who was employed by a VA contractor. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner indicated that he was unable to state the cause or origin of the Veteran's back disease because an important record was missing. Specifically, the examiner stated that he was unable to find a May 29, 1987, medical note in the Veteran's "indexed records." Notably, however, a copy of a May 29, 1987, health record is associated with the claims file. The examiner also opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. However, the examiner did not reconcile his opinion, with his statement attributing the Veteran's lumbar spine degenerative disc disease to aging, normal wear and tear, and post-service employment in a physically demanding job. Moreover, the examiner provided no supporting rationale for his opinion that spondylosis is a congenital defect or that there was no evidence of a superimposed disease or injury during service. In addition, the examiner stated that he was uncomfortable providing a medical opinion as to whether the Veteran has scoliosis, spondylolysis, spondylosis, or degenerative joint of the lumbar spine. The examiner also stated that he was uncomfortable proving an opinion as to whether any previously diagnosed back disorders were misdiagnosed or resolved. However, it is unclear whether the examiner was unable to provide the requested medical opinions due to limitations of his personal knowledge. For example, the examiner stated that his conclusions did not exclude that "the literature search is insufficient." Based on the foregoing, the Board again finds that the issue under consideration poses a medical problem of such complexity that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Therefore, the AOJ should follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic. Headache Disorder In a July 2021 VA examination report, the examiner indicated that the Veteran did not have a current or past diagnosis of a headache disorder. However, the examiner did not address the medical evidence of record that appears to document assessments of tension headaches during the appeal period. See, e.g., February 2013 private medical record. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In a July 2021 VA medical opinion, the examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner's only supporting rationale was that the Veteran's July 2021 VA examination was completely normal. He did not address the relevance, if any, of the post-service medical record discussed above. The Board also finds that the issues of entitlement to service connection for a headache disorder is inextricably intertwined with the Veteran's claim for service connection for a back disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). Shoulder Disorder In a July 2021 VA medical opinion, the examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner stated that the Veteran's July 2021 VA examination was completely normal and that he was discharged "without" disability. The examiner also suspected that the Veteran was malingering with respect to his shoulders because he contended that he was discharged from service due to a back injury, which the examiner concluded was not corroborated by the record. Nevertheless, the examiner did not address the relevance, if any, of an August 2012 private treatment records that documented complaints of shoulder pain with decreased range of motion. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). In addition, on June 1, 1987, a physical standards board concluded that the Veteran did not meet induction standards and recommended that he not be retained because his back condition was likely to result in disability separation in the future. A June 26, 1987, statement of medical examination and duty status noted that the Veteran reported having back pain due to falling while running from a dining facility. It was also noted that his injury was considered to have been incurred in the line of duty and was likely to result in a claim against the government for future medical care. As such, it appears the examiner's opinion was based, in part, on an incomplete or inaccurate factual premise. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, a remand is necessary. The Board also finds that the issues of entitlement to service connection for a shoulder disorder is inextricably intertwined with the Veteran's claim for service connection for a back disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for back, headache, or shoulder disorders that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. The AOJ should follow the established procedures for requesting an advisory opinion pursuant to 38 U.S.C. § 5109 regarding the nature and etiology of any current back disorders. If such an opinion cannot be obtained through these procedures, there must be documentation in claims file providing an explanation for why such an opinion is not possible, and a medical opinion must still be obtained from a suitably qualified examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. He or she should review the June 2019 VHA medical opinion request that provides a detailed summary of pertinent evidence. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify any back disorders that have been present during the appeal period or within close proximity thereto. He or she should specifically state whether the Veteran has (a) scoliosis; (b) spondylolysis; (c) spondylosis; (d) spondylolisthesis; and (e) degenerative joint and degenerative disc disease of the lumbar spine. If any previously diagnosed back disorders are not found, the examiner should address whether they were misdiagnosed or have resolved. For each diagnosis identified, the examiner should indicate whether the disorder is a congenital defect or disease. To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.") (a) For each current back disorder that is a congenital defect, the examiner should state whether there is any evidence of superimposed disease or injury during the Veteran's active duty service. (b) For each current back disorder that is a congenital disease or not a congenital defect, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's active duty service. If so, the examiner should state whether there was an increase in the severity of the disorder during the Veteran's active duty service and whether any increase was due to the natural progression of the disorder. (c) If the examiner determines that the back disorder is not a congenital defect and/or did not clearly and unmistakably preexist service, he or she should state whether it is at least as likely as not that the disorder manifested in or is otherwise related to the Veteran's active duty service, to include any symptomatology or injury therein. In rendering his or her opinion, the examiner should consider the service records that document treatment for back pain and x-ray findings of mild scoliosis and L5 spondylolysis. See, e.g., May 1987 service treatment records and June 1987 Entrance Physical Standards Board proceeding report. (The term "clear and unmistakable" means that the evidence is undebatable.) (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any headache disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify any headache disorders present during the appeal period or within close proximity thereto. If any previously diagnosed headache disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved. For each disorder identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran's military service. The examiner should also provide an opinion as to whether it is at least as likely as not that any current headache disorder is either caused by or aggravated by a service-connected disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any current shoulder disorders. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify any shoulder disorders present during the appeal period or within close proximity thereto. If the Veteran does not have a current diagnosis associated with his reported symptoms, the examiner should state this with a fully reasoned explanation. The examiner should also state whether there is any functional impairment caused by the Veteran's reported pain. Evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. For each disorder identified or any functional impairment resulting from pain, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran's military service. The examiner should also provide an opinion as to whether it is at least as likely as not that any current shoulder disorder is either caused by or aggravated by a service-connected disability. In rendering his or her opinion, the examiner should consider an August 2012 private medical record that noted the Veteran had shoulder pain with decreased range of motion. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The AOJ should furnish the Veteran and his representative with a copy of the advisory opinion regarding his back disorder when it is received. See 38 C.F.R. § 3.328. 5. The AOJ should ensure that there has been compliance with the foregoing directives and conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Wulff, 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.