Citation Nr: 21075895 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 20-07 485 DATE: December 21, 2021 ORDER Entitlement to service connection for a lumbosacral spine disability, to include chronic myositis of the paralumbar spine muscles, is denied. Entitlement to service connection for a bilateral ankle disability is denied. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a cardiovascular disability is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for bronchial asthma is remanded. Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for diabetic neuropathy of the bilateral upper extremities, including as due to diabetes mellitus, is remanded. Entitlement to service connection for diabetic neuropathy of the bilateral lower extremities, including as due to diabetes mellitus, is remanded. Entitlement to service connection for peripheral venous insufficiency of the bilateral lower extremities is remanded. FINDING OF FACT The record evidence shows that the Veteran's lumbosacral spine disability, to include chronic myositis of the paralumbar spine muscles, and bilateral ankle disability are not related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbosacral spine disability, to include chronic myositis of the paralumbar spine muscles, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). 2. The criteria for service connection for a bilateral ankle disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from September 1961 to July 1963 in the U.S. Army. He also had additional unverified active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Board remanded the currently appealed claims to the RO for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives only with respect to the claims of service connection for a lumbosacral spine disability, to include chronic myositis of the paralumbar muscles, and for a bilateral ankle disability. These claims are adjudicated on the merits below. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The remaining currently appealed claims are addressed in the REMAND portion of this decision below. The Board has recharacterized the claims on appeal as stated above. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding these claims again, additional development is required before the underlying claims can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). Service Connection Entitlement to service connection for a lumbosacral spine disability, to include chronic myositis of the paralumbar spine muscles, and for a bilateral ankle disability The Board finds that the preponderance of the evidence is against granting the Veteran's claims of service connection for a lumbosacral spine disability, to include chronic myositis of the paralumbar spine muscles, and for a bilateral ankle disability. The Veteran essentially contends that he incurred each of these disabilities during active service and experienced continuous post-service disability. The record evidence does not support his assertions regarding an etiological link between either of these disabilities and active service. It shows instead that, although he complained of and sought treatment for both of these disabilities in the decades since his service separation, neither of them is related to active service. The available service treatment records show that, at his induction (or enlistment) physical examination in September 1961, clinical evaluation of the spine and lower extremities was normal and he denied all relevant pre-service medical history. Clinical evaluation was unchanged at his separation physical examination in July 1963. He denied all relevant in-service medical history. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for a lumbosacral spine disability, to include chronic myositis of the paralumbar spine muscles, and for a bilateral ankle disability. Contrary to the Veteran's lay assertions, it shows instead that neither of these disabilities is related to active service. For example, in an August 2018 letter, C. E. M. Q., M.D., stated that the Veteran reported experiencing low back pain with paraspinal muscle stiffness, numbness, tingling, and loss of sensation with instability "radiating to" his ankles. Dr. C. Q. opined that it was "more probable than not" that the Veteran's low back and ankle complaints were related to active service. The diagnoses included chronic low back pain and degenerative joint disease of the ankles. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Dr. C. Q. provided no "clinical data or other rationale" to support the conclusory opinions he offered in August 2018 concerning the contended etiological relationships between these disabilities and active service. It appears instead that this physician based his opinions only on what the Veteran reported to him concerning his low back and ankle complaints. Having reviewed the August 2018 letter from Dr. C. Q., the Board finds that it is not probative on the issues of whether either a lumbosacral spine disability, to include chronic myositis of the paralumbar spine muscles, or a bilateral ankle disability is related to active service. On VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) in November 2020, the Veteran's complaints included a history of gradual onset low back pain for 20-25 years. "He states he used to work at the [postal] service and was exposed to years of heavy weight handling and long distance ambulation." He denied any in-service lumbosacral spine injuries. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran rated his current low back pain as 8/10 on a pain scale (with 10/10 being the worst imaginable pain). He denied any flare-ups of low back pain. He was limited in long distance walking. Physical examination of the lumbosacral spine showed pain on weight bearing, tenderness to palpation at the lumbar spinous process, 4/5 muscle strength throughout with 5/5 muscle strength on hip flexion, hypoactive reflexes, normal sensation in the upper anterior thighs and thighs/knees, decreased sensation in the lower legs/ankles and feet/toes, and negative straight leg raising bilaterally. The Veteran constantly used a cane and regularly used a walker. X-rays showed arthritis. There was no pain with weight bearing or non-weight bearing. There was pain with passive range of motion but did not result in or cause functional loss. The VA examiner opined that it was less likely than not that the Veteran's lumbosacral spine disability is related to active service. The rationale for this opinion was based on a review of the claims file. The rationale also was that the Veteran's lumbosacral spine disability "is secondary to the normal atraumatic changes of [the] aging process" as seen on recent x-rays. The rationale further was that the Veteran himself dated the onset of his lumbosacral spine disability to between 1995 and 2000 or 34 years since his service separation. The diagnoses were degenerative arthritis of the spine and discogenic disease and multilevel spondylosis of the lumbar spine. On VA ankle conditions DBQ in November 2020, the Veteran's complaints included constant bilateral ankle pain. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran experienced flare-ups of ankle pain. He was limited in standing and ambulation. Physical examination of the ankles showed tenderness to palpation over the ankle joint, 5/5 muscle strength, and no joint instability. He constantly used a cane. X-rays showed arthritis. There was no pain on weight bearing or non-weight bearing. There was pain with passive range of motion testing. The VA examiner opined that it was less likely than not that the Veteran's bilateral ankle disability is related to active service. The rationale for this opinion was based on a review of the claims file. The rationale also was based on a review of relevant medical literature which showed that a bilateral ankle disability "is considered part of [the] normal aging process in patients older than 40 years old." The examiner noted that he had reviewed the opinion provided by Dr. C. Q. and concluded that this opinion was not based on any medical evaluation of the Veteran or a review of most of the Veteran's medical records. The diagnosis was degenerative arthritis of the bilateral ankles. Contrary to the Veteran's lay assertions, the record evidence shows that his lumbosacral spine disability, to include chronic myositis of the paralumbar spine muscles, and bilateral ankle disability are not related to active service. The Board already has found the August 2018 letter from Dr. C. Q. to be not probative on the issues of whether either of these disabilities is related to active service (as discussed above). In contrast, the VA clinicians who conducted the Veteran's November 2020 examinations of the lumbosacral spine and bilateral ankles opined that it was less likely than not that either of these disabilities is related to active service. The November 2020 VA ankle conditions DBQ examiner also reviewed the August 2018 letter from Dr. C. Q. and noted additional deficiencies in that evidence (lack of a physical examination of the Veteran or a review of most medical records). The November 2020 VA clinician's opinions were fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for a lumbosacral spine disability, to include chronic myositis of the paralumbar spine muscles, or for a bilateral ankle disability. In summary, the Board finds that service connection for a lumbosacral spine disability, to include chronic myositis of the paralumbar spine muscles, and for a bilateral ankle disability is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee disability is remanded. The Veteran contends that he incurred a bilateral knee disability during active service and experienced continuous post-service disability. The Board already has found an August 2018 opinion from Dr. Q. to be inadequate for VA adjudication purposes (as discussed above). The Board next acknowledges that this disability was examined in November 2020. Unfortunately, it appears that the November 2020 VA knee and lower leg conditions DBQ examiner was not asked to provide and did not provide an opinion concerning the nature and etiology of the Veteran's bilateral knee disability. There was no request for an etiology opinion included in the October 2020 VA Form 21-2507a which requested, among other things, that the Veteran's knees be examined. Thus, the Board finds that, on remand, an opinion should be obtained which addresses this matter. 2. Entitlement to service connection for a cardiovascular disability, obstructive sleep apnea, bronchial asthma, an acquired psychiatric disability other than PTSD, a bilateral foot disability, a bilateral hip disability, diabetes mellitus, diabetic neuropathy of the bilateral upper extremities, including as due to diabetes mellitus, diabetic neuropathy of the bilateral lower extremities, including as due to diabetes mellitus, and for peripheral venous insufficiency of the bilateral lower extremities is remanded. The Veteran essentially contends that he incurred a cardiovascular disability, obstructive sleep apnea, bronchial asthma, an acquired psychiatric disability other than PTSD, a bilateral foot disability, a bilateral hip disability, diabetes mellitus, diabetic neuropathy of the bilateral upper extremities, diabetic neuropathy of the bilateral lower extremities, and peripheral venous insufficiency of the bilateral lower extremities during active service and experienced continuous post-service disability. As noted elsewhere, the August 2018 opinion from Dr. Q. is inadequate for adjudication purposes. Unfortunately, none of the VA medical nexus opinions provided since the Board's October 2020 remand addressing each of these disabilities is likely to survive judicial review. Each of the medical nexus opinions provided in October 2020 (diabetes mellitus, a cardiovascular disability), November 2020 (diabetic neuropathy in each of the Veteran's extremities, an acquired psychiatric disability other than PTSD, a bilateral foot disability, a bilateral hip disability, peripheral venous insufficiency of the bilateral lower extremities), and in February 2021 (obstructive sleep apnea, bronchial asthma) are inadequate for VA adjudication purposes because they violate the Court's holdings in Buchanan and Barr. The Board also notes that the November 2020 VA medical nexus opinions concerning the Veteran's bilateral foot and bilateral hip disabilities refer to a bilateral ankle disability in the rationale for these opinions. Although this reference to a bilateral ankle disability may be a typographical error, it nevertheless renders these opinions concerning the Veteran's bilateral foot and bilateral hip disabilities inadequate for VA adjudication purposes. It is well-settled that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. Nevertheless, each of the medical nexus opinions concerning these disabilities dated since the Board's October 2020 found the lack of either service treatment records showing in-service complaints or treatment or post-service medical records showing complaints or treatment persuasive support. This is error which requires remand. The Board notes that, when VA provides a Veteran with an examination or opinion, it has a duty to ensure that examination or opinion is adequate. See Barr, 21 Vet. App. at 303. Thus, the Board finds that, on remand, additional opinions should be obtained which address these matters. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the RO to re-certify this appeal to the Board without complying with the prior remand instructions. Given this error, another remand is required. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. If any records obtained are not in English, then have them translated into English. 2. Thereafter, forward the claims file to the clinician who conducted the Veteran's the November 2020 VA knee and lower leg conditions DBQ or another appropriate clinician for an opinion concerning the nature and etiology of his bilateral knee disability. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a bilateral knee disability is related to active service. A rationale must be provided for any opinion(s) expressed. 3. Forward the claims file to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's cardiovascular disability. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a cardiovascular disability is related to active service. A rationale must be provided for any opinion(s) expressed. 4. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's obstructive sleep apnea. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that obstructive sleep apnea is related to active service. A rationale must be provided for any opinion(s) expressed. 5. Forward the claims file to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's bronchial asthma. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that bronchial asthma is related to active service. A rationale must be provided for any opinion(s) expressed. 6. Forward the claims file to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's acquired psychiatric disability other than PTSD. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that an acquired psychiatric disability other than PTSD is related to active service. A rationale must be provided for any opinion(s) expressed. 7. Forward the claims file to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's bilateral foot disability. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a bilateral foot disability is related to active service. A rationale must be provided for any opinion(s) expressed. 8. Forward the claims file to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's bilateral hip disability. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a bilateral hip disability is related to active service. A rationale must be provided for any opinion(s) expressed. 9. Forward the claims file to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's diabetes mellitus. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that diabetes mellitus is related to active service. A rationale must be provided for any opinion(s) expressed. 10. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's diabetic neuropathy of the bilateral upper extremities and diabetic neuropathy of the bilateral lower extremities. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that diabetic neuropathy of the bilateral upper extremities is related to active service. The clinician next is asked to state whether diabetic neuropathy of the bilateral lower extremities is related to active service. The clinician further is asked to state whether diabetes mellitus caused or aggravated diabetic neuropathy of the bilateral upper extremities and/or diabetic neuropathy of the bilateral lower extremities. A rationale must be provided for any opinion(s) expressed. 11. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's peripheral venous insufficiency of the bilateral lower extremities. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that peripheral venous insufficiency of the bilateral lower extremities is related to active service. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each of the Veteran's lower extremities, if appropriate. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.