Citation Nr: 21074880 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-02 089 DATE: December 16, 2021 REMANDED Service connection for a back condition, including muscle spasms with pain, as due to an undiagnosed illness. Service connection for memory loss due to an undiagnosed illness. REASONS FOR REMAND The Veteran served on active duty from December 1990 to May 1991. He also had service in the Reserve and a period of active duty for training from May 1981 to September 1981. The case is on appeal from a February 2015 rating decision. In November 2018, the Veteran testified at a Board hearing. Most recently, in a May 2021 decision, the Board granted service connection for a condition of rushing blood to the back of head and neck, and a psychiatric disorder, and denied service connection for lack of energy. At that time, the Board also remanded the claims remaining on appeal for additional development. 1. Service connection for a back condition, including muscle spasms with pain, as due to an undiagnosed illness. The Board remanded with instructions to obtain a VA opinion addressing whether the Veteran has a current lumbar spine condition, including spasms, related to service. Upon remand, in August 2021, a VA examiner addressed the Veteran's case. The VA examiner opined that the Veteran's condition was less likely than not incurred in or caused by service. The VA examiner explained that "[t]here is insufficient information to determine if functional impairment of low back pain is due to service," and "there is no chronicity of care," so "[a] nexus has not been established." In a separate report, the same examiner explained that lumbar (lower back) muscle strains and sprains are the most common causes of low back pain. Muscle strains and sprains are common in the lower back, because it supports the weight of the upper body and is involved in moving, twisting and bending. The examiner went on to observe that lumbar muscle strain is caused when muscle fibers are abnormally stretched or torn, and lumbar sprain is caused when ligaments (the tough bands of tissue that hold bones together) are torn from their attachments. According to the examiner, both of these can result from a sudden injury or from gradual overuse, and lumbar strain or sprain can be debilitating. The examiner identified the symptoms of lumbar strain as including low back pain that may radiate into the buttocks, but does not affect the legs, stiffness in the low back area, restricting range of motion, inability to maintain normal posture due to stiffness and/or pain, muscle spasms either with activity or at rest, pain that persists for a maximum of 10-14 days. The examiner concluded by opining that it is less likely that the claimed condition was caused by an exposure event, and a nexus has not been established. In a third report, the same VA examiner added that the "Veteran's low back condition is a disease with a clear and specific etiology and diagnosis, and "[i]t is less likely than not that the low back condition is related to the exposure event experienced in Southwest Asia." This opinion does not adequately answer the questions identified in the Board's remand. In fact, it is no more probative than the prior opinions of record, which were previously found insufficient. It suffers from the same inadequacies. For example, the examiner stated that "[t]here is insufficient information to determine if functional impairment of low back pain is due to service." The examiner did not explain this aspect of the opinion, and it is open to different interpretations. On the one hand, it is unclear if the examiner meant that there was missing or incomplete information upon which to reach an opinion. If this was the case, it is not clear that the examiner has considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. When the record leaves this issue in doubt, it is the Board's duty to remand for further development. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Moreover, if this was the examiner's intended meaning, it becomes particularly unclear when considering that the examiner, after having qualified that there was insufficient information to determine if the Veteran's condition was due to service, went on to opine that it was not due to service. It is not clear how the examiner could reach this opinion if there was insufficient information. Relatedly, if the examiner meant that there was insufficient information to reach an opinion, the examiner impermissibly relied on an absence of documented evidence without explaining why, as a medical matter, that the Veteran would have sought treatment or complained of the condition during service, or why an absence of treatment (as opposed to symptoms) was otherwise medically significant. See, McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Specifically, the examiner materially relied on the lack of a chronicity of care, but did not account for the Veteran's own statements that he had ongoing back pain since service. It is not clear from the examiner's opinion why the Veteran's statements were not sufficient evidence. The VA examiner's failure to consider the Veteran's statements, which is relevant evidence that he first noticed symptoms proximate in time to service, when formulating the opinion renders that opinion inadequate. See McKinney, 28 Vet. App. at 30. The examiner's opinion is open to a different interpretation. It is possible the examiner actually meant to state that the available information was sufficient to show that the Veteran's low back was not due to service. The examiner's opinion may simply have been the result of poor draftsmanship by misstating this affirmative conclusion for a negative one. Overall, the examiner's intended meaning is unclear, and the Board is not able to determine which interpretation the examiner intended. This lack of clarity undermines the ability of the Board to understand the basis for the opinion. More generally, the opinion and rationale is largely conclusory and leaves the Board's with no greater understanding of the medical basis underlying the claim. As such, it is not substantially compliant with the Board's prior remand, and therefore a remand is again warranted. 2. Service connection for memory loss as due to an undiagnosed illness. The Board previously remanded this claim for a VA opinion because a July 2020 VA examiner specifically and repeatedly stated that the evaluation for memory loss was outside the scope of normally performed examinations in the current environment. The examiner stated that an appropriate referral would be to Neuropsychology. The Board's remand observed that a different VA examiner in February 2021 classified the Veteran's mild memory loss as a symptom of his psychiatric condition. The Board found that the February 2021 VA examination did not fully resolve this issue. Both the July 2020 and February 2021 VA examiners were psychologists, and the July 2020 VA examiner had already proclaimed this question to be outside the scope of a psychological examination. The examiner made clear that a neuropsychological evaluation was needed. This was the basis for the remand. The Board directed an opinion to be obtained from "by an appropriate clinician qualified in neuropsychology or other related field." Upon remand, an opinion was obtained in August 2021. The VA examiner was a psychologist. The examiner did not explain how she was qualified to address this question when the prior examiner indicated that a psychologist was not qualified to do so. Hence, the VA examiner's qualifications call into question her competence to give an opinion. Moreover, the opinion itself is problematic. The VA examiner opined that a memory impairment was less likely than not related to service because his "memory impairment are [sic] not related to diagnoses of Major Depressive Disorder and/or Generalized Anxiety Disorder," and "[f]urthermore, he did not evidence memory impairment during the evaluation, but he reported having difficulty recalling names and facts." In a separate report, the examiner commented that the "Veteran reported recent memory impairment marked by forgetting names and facts," but "[t]here is not evidence of memory loss during his military service," and "during the evidence, there was no evidence of the reported memory impairment." In a third report, the examiner added that "[t]here is not evidence of memory loss during his military service, and his report of memory loss is not likely to be associated with an experience in Southwest Asia." Finally, the examiner repeated that "during the evidence, there was no evidence of the reported memory impairment." This opinion is deficient in three ways. First, it indicates that there was no evidence of a memory impairment even though prior examinations in February 2015 and January 2021 found the Veteran to have mild memory loss. Hence, the August 2021 VA opinion inaccurately states that there was no evidence of memory impairment. Second, and relatedly, even if he did not have memory loss during service, it is not clear why this was relevant. The Veteran is claiming memory loss due to environmental exposures in Southwest Asia. The law does not require that the symptom have arisen in service, and the VA examiner gave no medical reason for why a memory loss needed to have arisen in service. Finally, the examiner gave no rationale for the opinion that "his report of memory loss is not likely to be associated with an experience in Southwest Asia." Overall, the opinion is too conclusory to allow the Board to decide the issue. Given these inadequacies, remand for a new opinion is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed lumbar spine condition. (a.) Does the Veteran have a current diagnosis? The examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (b.) Please provide a medical statement explaining whether the Veteran's disability pattern is: (1) an undiagnosed illness (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown pathophysiology or etiology (3) a diagnosable chronic multi-symptom illness with a partially explained pathophysiology or etiology, or (4) a disease with a clear and specific pathophysiology or etiology and diagnosis (c.) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern consistent with options (3) or (4) above, (i.e., either a diagnosable chronic multi-symptom illness with a partially explained pathophysiology or etiology or a disease with a clear and specific pathophysiology or etiology and diagnosis), then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner is advised that a negative opinion cannot be based solely on the fact that the disability is not on the list of diseases that are presumptively associated with environmental exposures in Southwest Asia. Hence, in answering this question, the examiner is asked to disregard whether the disorder is one for which a "presumption" is established and, instead, to answer whether the medical condition is a result of exposure even though it is not on the list of "presumptive" diseases. (d.) If no, is it at least as likely as not that any diagnosed disorderor functional impairment associated with the lumbar spinehad its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms during and since service. The examiner is asked to explain why his statements make it more or less likely that the current condition is related to service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed condition is known to develop, or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. If the examiner finds that there is insufficient information available to reach an opinion, the examiner should identify what missing information is needed and whether that information is reasonably procurable. 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by a qualified clinician in neuropsychiatry, neuropsychology, or neurology to determine the nature and etiology of the claimed memory loss. (a.) The examiner is asked to identify his or her qualifications to address memory loss, including any training or certifications for applying the standard screening tool(s) for memory impairment. (b.) Does the Veteran have a current diagnosis? The examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (c.) Please provide a medical statement explaining whether the Veteran's disability pattern is: (1) an undiagnosed illness (2) a diagnosable but medically unexplained chronic multi-symptom illness of unknown pathophysiology or etiology (3) a diagnosable chronic multi-symptom illness with a partially explained pathophysiology or etiology, or (4) a disease with a clear and specific pathophysiology or etiology and diagnosis (d.) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern consistent with options (3) or (4) above, (i.e., either a diagnosable chronic multi-symptom illness with a partially explained pathophysiology or etiology or a disease with a clear and specific pathophysiology or etiology and diagnosis), then please provide a medical opinion as to whether it is at least as likely as not that the disability pattern or diagnosed disease is related to a specific exposure event experienced by the Veteran during service in Southwest Asia. (e.) If no, is it at least as likely as not that any diagnosed disorderor functional impairment associated with the memory impairmenthad its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms during and since service. The examiner is asked to explain why his statements make it more or less likely that the current condition is related to service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed condition is known to develop, or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (Continued on the next page) The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. If the examiner finds that there is insufficient information available to reach an opinion, the examiner should identify what missing information is needed and whether it is reasonably procurable. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.