Citation Nr: 21006305 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-19 547A DATE: February 3, 2021 REMANDED 1. Entitlement to service connection for a lumbar spine disorder, to include degenerative disc disease, osteoarthritis, and ankylosing spondylosis is remanded. 2. Entitlement to service connection a right lower extremity disorder, other than varicose veins, is remanded. 3. Entitlement to service connection a left lower extremity disorder is remanded. 4. Entitlement to service connection a left foot disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1954 to June 1958. In May 2018 and July 2020, the Board remanded these claims for additional development. As noted below, the Veteran’s variously diagnosed lumbar spine disorders have been determined to share the same physical manifestations of one disability. See January 2020 VA Back Conditions Disability Benefits Questionnaire (DBQ). As such, the issue has been recharacterized above. The Board is aware this matter was remanded twice before (and regrets the delay in final adjudication inherent with yet another remand). However, the response provided has been inadequate to comply with the previous remand, and corrective action remains necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the matters under consideration are of such medical complexity that the Board finds at this juncture that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, as discussed below, the etiology of the claimed disorders, in light of the Veteran’s contentions, require an expert, or experts, opinions regarding the musculoskeletal and neurological systems. For the reasons below, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. 1. Lumbar spine The Veteran is seeking entitlement to service connection for a lumbar spine disorder that he believes is the result of his military service. Specifically, during the Veteran’s December 2015 Decision Review Officer hearing, the Veteran testified that in 1957, while in the Air Force, he was hospitalized after he fell about 25 feet from the tail section of a B66 on the vertical stabilizer and injured his back. In the May 2018 Board remand, the RO was directed to obtain a VA examination to determine the nature and etiology of the variously diagnosed lumbar spine disorders. In the subsequent July 2020 Board remand, it was noted the RO scheduled the Veteran for a VA Back Conditions Disability Benefits Questionnaire (DBQ) in January 2020. At that time, the VA concluded that the diagnosed disorders of spinal stenosis, spondylolisthesis, and degenerative disc disease of the lumbar spine share the same physical manifestations of one disability. Further, these diagnoses are well known medical conditions that may have common etiology arising from similar mechanisms of injury such as repetitive use injury, traumatic injury, as well as shared natural progression with aging. The VA examiner then determined it was less likely than not these disorders are due to the Veteran’s military service because the service treatment records do not include in-service diagnoses. No further rationale was provided. Given such, a May 2020 addendum was provided to supplement this decision. The May 2020 addendum once again found no nexus where the records related to complaints of the Veteran’s back which were found to begin around 1994, which was at least 30 years after the Veteran’s separation from service, and where there was no clear origin of any back pain during service and no suggestion of continuity of care following his discharge from service. In July 2020, the Board found the January 2020 examination and opinion inadequate as the opinion was based solely on the absence of in-service treatment or findings. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Consequently, the RO obtained an addendum opinion dated in October 2020. See October 2020 VA addendum opinion. The examiner again noted there was no evidence of an in-service injury to the back, or treatment in-service. Further, the examiner noted there were no medical records following service indicating any continuity of care for a back disorder, until approximately 1996, which he found to be nearly 40 years after discharge. Therefore, the examiner concluded it is far more likely that the Veteran’s diagnosed back conditions are related to typical age-related progression. Again, the VA examiner failed to provide a sufficient rationale and the Board also finds this opinion to be inadequate as the examiner provided a conclusory statement without referencing any medical evidence in the claims file or accepted medical literature upon which he substantiated this opinion. Moreover, the examiner failed to reference the findings of a June 1996 private treatment record referring to a fall in the 1960s in connection with reports of back pain; medical treatise articles or lay statements submitted by the Veteran throughout the course of this appeal attesting to pain in the back since service. See June 1996 Private Treatment Record; see also June 2011 H.D.T. lay statement referencing pain and an in-service incident; see alsoJuly 2011 M.R. lay statement attesting to pain; see also November 2011 R.B. lay statement and an in-service incident; see also July 2011 Back.com article; see also July 2011 Patient Discussions article. The Board finds these opinions, in the aggregate to be inadequate for rating purposes and non-responsive to the directives in the prior July 2020 Board remand. Therefore, the Board is requesting the aforementioned expert opinion regarding the etiology of the Veteran’s claimed lumbar spine disorders. 2. Right and left lower extremity peripheral neuropathy The Veteran is seeking entitlement to service connection for bilateral peripheral neuropathy that he believes is due to his military service. Specifically, the Veteran contends that he injured his legs in the same fall which injured his back while in-service. See December 2015 Decision Review Officer Hearing Transcript. Alternatively, the Veteran seeks service connection for bilateral peripheral neuropathy as due to or aggravated by his lumbar spine disorders, or his service-connected right lower extremity varicose vein disability. As was previously noted by the Board in the May 2018 and July 2020 remands, the Veteran has current diagnoses of bilateral radiculopathy and peripheral neuropathy. See November 2014 VA Treatment Record; see also January 2020 VA Peripheral Nerves Conditions DBQ. The record includes an October 2016 VA treating physician’s statement that the diagnosed neuropathy is due to the right lower extremity phlebitis. However, the Board finds this opinion has low probative value as there is no indication that the treating physician reviewed pertinent medical evidence in the claims file. Instead, the opinion appears to be based only the Veteran’s self-reported medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Veteran was next examined by VA in January 2020. However, in the July 2020 Board remand, the Board determined the medical opinion accompanying the recent January 2020 VA DBQ was inadequate as the direct service connection medical opinion was based solely on the absence of in-service treatment or findings, and an addendum opinion was requested. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Further, the Board noted that the VA examiner failed to provide any opinion regarding the theory of secondary service connection as it pertains to proximate causation with respect to the lumbar spine diagnoses. As for whether the bilateral lower extremity peripheral neuropathy is proximately due to or aggravated by the right lower extremity varicose veins disability, the examiner stated simply that there is no known medical correlation between varicose veins and the Veteran's peripheral neuropathy or sciatica. Thereafter, a May 2020 Addendum Opinion stated that the Veteran's radiculopathy is related to his back conditions, and results from progression of these interrelated conditions. The examiner noted that there is no medical connection between sciatica, neuropathy, and radiculopathy and varicose veins and, therefore, there is no proximal connection or aggravation. No further rationale was required. Most recently, an addendum opinion was obtained in October 2010. The October 2020 addendum opinion again found that the current medical knowledge indicates that there is no significant connection between varicose veins and neuropathy/ radiculopathy. Again, the VA examiner failed to provide a sufficient rationale and the Board also finds this opinion to be inadequate as the examiner provided a conclusory statement without referencing any medical evidence in the claims file or accepted medical literature upon which he substantiated this opinion The Board finds these opinions, in the aggregate to be inadequate for rating purposes and non-responsive to the directives in the prior July 2020 Board remand. Therefore, the Board is requesting the aforementioned expert opinion regarding the etiology of the Veteran’s claimed right and left lower extremity disorders, to include whether they are due to or aggravated by the lumbar spine disorder or the service connected right lower extremity varicose veins disability. 3. Left foot disorder The Veteran is seeking entitlement to service connection for a left foot disorder that he believes is due to his military service. Specifically, as noted in the prior May 2018 Board remand, the Veteran contends that he has had left heel pain radiating to his lower leg on and off since 1956. See October 2007 VA Treatment Records. The Veteran also stated that he injured his foot in the same fall which injured his back while in-service. See December 2015 Decision Review Officer Hearing Transcript. As was previously noted by the Board in the May 2018 and July 2020 remands, the Veteran has current diagnoses of plantar fasciitis and tenosynovitis of the left foot. Additionally, the Veteran’s service treatment records reflect that he had left foot and leg pain in February1957. In the July 2020 Board remand, the Board determined the medical opinion accompanying the recent January 2020 VA Foot Conditions DBQ to be inadequate as the medical opinion was based solely on the absence of in-service treatment or findings, and an addendum opinion was requested. However, the October 2020 addendum opinion obtained on remand contained no mention of the claimed left foot disorder. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board must remand this matter once again in order to ensure an adequate record upon which to decide the claim. Therefore, the Board is requesting the aforementioned expert opinion regarding the etiology of the Veteran’s claimed left foot disorder. The matters are REMANDED for the following action: 1.Obtain any updated medical records related to the Veteran’s claims on appeal 1. Upon completion of the above to the extent possible, obtain an Independent Medical Examination (IME) from an appropriate physician. The physician should provide an opinion responding to the whether it is at least as likely as not (50 percent or higher degree of probability) that any current back disability is related to active service. (a.) To include, are the Veteran’s assertions consistent with medical knowledge or implausible? Do the Veteran’s reports about his symptoms align with how the disability is known to develop? The VA examiner must consider the Veteran’s lay statements, to include his statements about his in-service fall in which he injured his back. Specifically, the physician must comment on the following: • In seeking treatment for his back disability in 1996, the Veteran reported to his examiner that he fell in the 1960s, possibly 1961-1962, but no mention of a fall was made as to service. See June 1996 Private Treatment Record. • June 2011 H.D.T. lay statement referencing pain and an in-service incident. • July 2011 M.R. lay statement attesting to pain. • November 2011 R.B. lay statement and an in-service incident. • Medical treatise evidence pertaining to the various causes of back pain. See July 2011 Back.com article; July 2011 Patient Discussions article. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. A complete rationale for all opinions offered must be provided. 2. Obtain an IME from an appropriate physician. The physician should provide an opinion responding to the following: (a.) whether it is at least as likely as not (50 percent or higher degree of probability) that any current bilateral lower extremity radiculopathy or neuropathy is related to active service, to include the reported in-service fall. To include, are the Veteran’s assertions consistent with medical knowledge or implausible? Do the Veteran’s reports about his symptoms align with how the disability is known to develop? (b.) whether it is at least as likely as not that the Veteran's peripheral neuropathy of the left and right lower extremities was caused by his service-connected varicose veins of the right lower extremity, yes or no? To include, are the Veteran’s assertions consistent with medical knowledge or implausible? Do the Veteran’s reports about his symptoms align with how the disability is known to develop? (c.) Is it at least as likely as not that the Veteran's peripheral neuropathy of the left and right lower extremities underwent any incremental increase (aggravation) in disability, regardless of its permanence, due to his service-connected varicose veins of the right lower extremity, yes or no? To include, are the Veteran’s assertions consistent with medical knowledge or implausible? Do the Veteran’s reports about his symptoms align with how the disability is known to develop? The VA examiner must consider the Veteran’s lay statements, to include his statements about his in-service fall in which he injured his lower extremities. Specifically, the physician must comment on the following: • The January 1957 service treatment record that notes an abrasion to the left upper leg. However, there is no indication as to the cause of the abrasion, or any indication of ongoing treatment or complications. See Service Treatment Records and Service Personnel Records. • In seeking treatment for his back disability in 1996, the Veteran reported to his examiner that he fell in the 1960s, possibly 1961-1962, but no mention of a fall was made as to service. See June 1996 Private Treatment Record. • June 2011 H.D.T. lay statement referencing pain and an in-service incident. • July 2011 M.R. lay statement attesting to pain. • November 2011 R.B. lay statement and an in-service incident. • Medical treatise evidence pertaining to the various causes of back pain. See July 2011 Back.com article; July 2011 Patient Discussions article. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. A complete rationale for all opinions offered must be provided. 3. Obtain an IME from an appropriate physician. The physician should provide an opinion as to whether the Veteran’s current left foot disorder is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include his stated fall in 1957. The physician should provide an opinion responding to the following: (a.) Whether the Veteran’s assertions are consistent with medical knowledge or implausible? Do the Veteran’s reports about his symptoms align with how the disability is known to develop? The examiner should take into consideration the following: • The January 1957 service treatment record that notes an abrasion to the left upper leg. However, there is no indication as to the cause of the abrasion, or any indication of ongoing treatment or complications. See Service Treatment Records and Service Personnel Records. • June 2011 H.D.T. lay statement referencing pain and an in-service incident. • July 2011 M.R. lay statement attesting to pain. • November 2011 R.B. lay statement and an in-service incident. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. Furthermore, if medical literature is relied upon in rendering this determination, the physician should identify and specifically cite each reference material utilized. A complete rationale for all opinions offered must be provided. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL.IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED.IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TOTHE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.