Citation Nr: 21006718 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-18 383 DATE: February 5, 2021 ORDER Entitlement to service connection for lumbar spine disability is denied. REMANDED Entitlement to service connection for right arm condition is remanded. FINDING OF FACT The Veteran’s lumbar spine disability did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1962 to June 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision by a Department of Veterans Affairs Regional Office (RO). In February 2020, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The Board held the record open for 30 days for the Veteran to submit additional relevant evidence. In April 2020, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain VA medical records prior to September 2003. The AOJ was additionally instructed to obtain another VA examination with regard to the service connection claim for right arm condition. The Board notes that VA medical records dating between January 1992 and December 1999 have been determined to not exist. Additionally, the requested VA examination was obtained in October 2020 and has been associated with the claims file. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Lumbar Spine Disability The Veteran seeks entitlement to service connection for lumbar spine disability. Specifically, the Veteran asserts that his lumbar spine disability is etiologically related to an in-service fall off a scaffold. See February 2020 Board Hearing Transcript. The evidence of record includes a July 1964 service treatment record (STR) showing the Veteran was seen related to spasms of the paraspinous muscles in the thoracic region secondary to lifting. A March 1965 STR noted the Veteran had fallen. He complained of left shoulder blade and back pain. The clinician noted multiple bruises but no areas of tenderness and no limitation of motion. The Veteran was treated with heat. An April 1965 STR noted a diagnosis for chronic back strain. Another April 1965 STR shows the Veteran reported back pain the past 9 months which interfered with lifting and his ability to work. The Veteran was assessed with a “definite increase in muscle mass in the right post paravertebral muscle group.” The Veteran was also assessed with possible atrophy of the left paravertebral muscle group. In addition, the clinician noted point tenderness to the rhomboid group of the right scapular region. Later that month, a STR noted a 9 month history of intermittent back pain with no real remission. Lifting pain was noted to cause work problems. The clinician noted the Veteran had hypertrophy of right paradorsal vertebral musculature. The Veteran was diagnosed with “chronic back pain - right rhomboid/paravertebral muscles.” The Veteran’s May 1966 separation examination noted a normal spine. The Veteran reported recurrent back pain, and the clinician noted a history of chronic back pain in April 1965 which was treated with physical therapy. No current back trouble or sequelae were noted since the prior treatment. The Veteran denied any other significant medical history. Post-service evidence includes a February 2003 VA medical record showing the Veteran complained of constant paresthesias of the left hand for the past 8 months. He further complained of intermittent erectile dysfunction. He denied using any regular medication and the physician noted no complaints of any joint pain or swelling. The examiner noted the Veteran’s past medical history, including a childhood tonsillectomy, which was absent any complaints of lumbar spine pain or injury. A December 2009 private medical record shows the Veteran was seen related to complaints of back pain. The Veteran reported a one week history of lower back pain with no history of injury. A June 2010 MRI study revealed degenerative changes of the lumbar spine. The study was negative for acute fracture or subluxation. Specifically, the study revealed lumbar spondylosis with multiple disc bulges/protrusions and neural foraminal stenoses. See Private Medical Records Received March 2018. The Veteran underwent a VA lumbar spine examination in April 2018. The examiner noted a diagnosis for degenerative arthritis of the spine. The Veteran reported that in 1964, he was working on scaffolding when he fell approximately 30 feet to the ground and hurt his back. Thereafter, the Veteran reported that he continued to have back pain. He also reported having seen several doctors throughout the years. No nexus opinion was provided. In a November 2018 VA examination report, the examiner opined that the Veteran’s lumbar spine disability was “less likely as not (50 percent or greater probability)” etiologically related to service. In support of this opinion, the examiner noted the relevant medical history including a June 1964 record noting muscle spasms due to lifting, April 1965 records noting treatment for muscle spasm, a May 1965 record noting no back pain, and a May 1966 separation examination noting a history of back pain that was treated with physical therapy with no subsequent sequelae. Thereafter, the examiner noted a February 2003 VA medical record showing treatment for several conditions, but which did not note any complaints of back pain or any past medical history for back pain. The examiner further noted a December 2009 VA medical record showing complaints of back pain with a history given of back pain the past week with no history of injury. The examiner stated that given the medical history, that it was less likely than not that the current diagnosed degenerative arthritis was incurred in or caused by muscle spasms during service. Instead, the examiner found that the etiology of the current lumbar spine disability was “at least as likely due to the effects of aging.” A May 2019 VA medical record noted chronic low back pain since 1964 when the Veteran fell off an aircraft wing. See VA Medical Records Received July 2019. A January 2020 private medical record received in February 2020 noted chronic back pain and left-sided low back pain without sciatica. The Veteran reported that in 1965, he fell 35 feet off an aircraft to a concrete floor. The physician, Dr. Cline, noted STR showing the Veteran had back pain during service. It was also noted that the Veteran had an MRI scan in 2010 which revealed degenerative changes and disc protrusions but no nerve compression. Dr. Cline opined that “it is certainly possible that his fall in 1965 could have caused part of this problem.” At a February 2020 Board hearing, the representative noted that the Veteran’s STRs documented back problems which had reoccurred over a long period of time. The Veteran testified that during service he was on scaffolding inspecting an engine when he was hit by a propeller which threw him off the scaffolding and approximately 35 feet to the floor. The Veteran further testified that the next thing he remembered was lying on the floor and that he had back problems ever since that incident. In addition, the Veteran reported receiving therapy for his back during service following the fall. A February 2020 private medical record noted a medical assessment for chronic back pain. The physician, Dr. Cline, noted back pain and sciatica which was “at least as likely as not due to the fall in 1965.” No rationale was provided. Lastly, in May 2020, a VA medical record shows the Veteran reported a lot of problems with his back including radiating pain into his left leg. He further reported chronic back problems since 1965. See VA Medical Records Received June 2020. After a review of the evidence of record, the Board finds that entitlement to service connection for lumbar spine disability is not warranted. In this regard, the Board finds the November 2018 VA examiner’s medical opinion the most probative evidence of record. The examiner opined that the Veteran’s current lumbar spine disability was not etiologically related to service. The Board finds the examiner’s medical opinion well supported, including consideration of the Veteran’s STRs showing treatment for lumbar spine pain and muscle spasms. In this regard, the examiner relied on the Veteran’s separation examination in which a clinician noted he received lumbar spine treatment with physical therapy, and that did not have any subsequent sequalae. Additionally, the examiner relied on a lack of complaints or treatment for a lumbar spine disability until December 2009. In this regard, the examiner noted that the Veteran had been treated for several conditions as of February 2003, but that the Veteran had not reported any complaints of back pain or any past medical history for back pain at that time. The examiner additionally noted that the December 2009 treatment record reflected that the Veteran reported back pain for the past week with no history of a prior back injury. The Board recognizes Dr. Cline’s opinion. However, Dr. Cline’s medical opinion does not contain any rationale. A medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). Additionally, the Board notes that speculative language such as “it is certainly possible” does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Board further recognizes the Veteran’s lay statements linking his lumbar spine disability to service, including reports of chronic back pain since service, and that he sought medical treatment for a back condition beginning in the 1990s. The Veteran is competent to report purported symptoms such as experiencing chronic pain during and after service, and having received treatment. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the Board finds the Veteran to be an inaccurate historian. In this regard, the Board finds it instructive that the clinician who conducted the Veteran’s separation examination provided specific findings with regard to the Veteran’s lumbar spine, but specifically found no current back trouble or sequelae since his in-service physical therapy treatment. Therefore, as the clinician specifically addressed the current symptomatology of the Veteran’s lumbar spine at that time, had the Veteran been experiencing chronic back pain, the clinician would have included such complaints in his findings. The Board finds it further instructive that first post-service medical record contained in the claims file shows the Veteran provided complaints of current medical conditions, but did not report any chronic back pain. He further denied taking any medications and the examining physician provided a detailed past medical history, including a childhood surgery, which was absent any reports of chronicity of care (to include self-care) for chronic back condition. Instead, the first record noting post-service complaints of back pain is a December 2009 private treatment record which shows the Veteran reported a one week history of back pain and denied any history of injury. It stands to reason that had the Veteran been experiencing chronic back pain since separation from service, he would have reported such while providing a past medical history in February 2003, or when he sought treatment for back pain in December 2009. Accordingly, the Board finds the Veteran to be an inaccurate historian and provides his lay statements that he continued to experience back problems since his separation from service little probative value. Therefore, the Board finds that the Veteran’s lay assertions in the present case are outweighed by the November 2018 VA medical examiner’s opinion, who determined that the there was no nexus between the Veteran’s current lumbar spine disability and service. The examiner has training, knowledge, and expertise on which he relied to form his opinion, and he provided a persuasive rationale. Importantly, there is no competent medical evidence to the contrary. Thus, the Board finds that the third Shedden requirement has not been met. Although the Veteran is entitled to the benefit-of-the-doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for lumbar spine disability. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). REASONS FOR REMAND 2. Right Arm Condition As noted above, this case was Remanded in April 2020 to obtain a VA examination. In this regard, the Board noted that the STRs showed that shortly after the Veteran was treated for a fall in March 1965, he was assessed with a “definite increase in muscle mass in the right post paravertebral muscle group.” The Veteran was also assessed with possible atrophy of the left paravertebral muscle group. In addition, the clinician noted point tenderness to the rhomboid group of the right scapular region. Another April 1965 STR noted weakness in right arm grip and numbness in the palmer aspect of the right index, mid and long fingers. No attributable cause was noted. The Veteran again complained of back pain and weakness and numbness of his right arm and hand later in April 1965. Approximately a week later, the Veteran complained of back pain and weakness and numbness of his right arm and hand. In offering any medical opinion, the Board requested the VA examiner to discuss the Veteran’s in-service fall and relevant STRs documenting right arm complaints and treatment, including point tenderness to the rhomboid group of the right scapular region. In particular, the Board noted that it was interested in the in-service findings of point tenderness to the rhomboid group of muscles in the right scapular region and the relationship, if any, to Dr. Kline’s February 2020 diagnosis for muscle weakness in the RUE. The requested a VA examination was obtained in November 2020 (see signature date). The examiner opined that it was “less likely than not (less than 50 percent probability)” that the Veteran had a right arm condition that was etiologically related to service. In support of this opinion, the examiner noted that no chronic right shoulder/arm diagnosis had been made outside of the service-connected CTS. In addition, the examiner noted no documentation in the claims file of right shoulder pain outside CTS. Moreover, the examiner noted that a contemporary X-ray study had revealed right shoulder degenerative arthritis. In this regard, the examiner noted that the Veteran’s separation examination did not show any right shoulder condition and noted a 54 year gap in time between separation from service and the current diagnosis for degenerative arthritis. Accordingly, the examiner concluded that a nexus had not been established. The Board finds the November 2020 VA examination inadequate. First, the examiner did not discuss any of the above-mentioned STRs or Dr. Cline’s February 2020 diagnosis for muscle weakness in the RUE as requested. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the remand). Second, the examiner’s rationale contains conflicting statements. In this regard, the examiner noted no chronic right shoulder diagnosis outside of CTS, but thereafter notes an X-ray study revealing right shoulder degenerative arthritis. Lastly, the examiner erroneously stated that the record contained no documentation in the claims file of right shoulder pain outside CTS. Conversely, during his April 2018 VA shoulder examination, pain was noted during abduction ROM testing. Accordingly, the Board finds that a remand is necessary to obtain another VA examination in order to properly adjudicate this issue on appeal. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, obtain an addendum to the November 2020 VA examination by an appropriate examiner to determine the nature and etiology of any diagnosed right shoulder/arm condition. The Veteran should be scheduled for an in-person examination if determined necessary. The examiner should provide the following opinions: Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed right shoulder/arm condition other than CTS that is etiologically related to his period of service, to include as due to his in-service fall? In offering the opinion, the examiner should discuss the Veteran’s in-service fall and relevant STRs documenting right arm complaints/treatment, including point tenderness to the rhomboid group of the right scapular region. In particular, the Board is interested in the in-service findings of point tenderness to the rhomboid group of muscles in the right scapular region and the relationship, if any, to Dr. Kline’s February 2020 diagnosis for muscle weakness in the RUE, the Veteran’s diagnosis for right shoulder degenerative arthritis, and if such findings suggest a potential separate condition affecting the right shoulder area for which the Veteran’s claim is based. A review of the Veteran’s service treatment records (STRs) shows he was treated for a fall in March 1965 during which time he complained of a painful left shoulder blade and back. An April 1965 STR shows the Veteran was assessed with a “definite increase in muscle mass in the right post paravertebral muscle group.” The Veteran was also assessed with possible atrophy of the left paravertebral muscle group. In addition, the clinician noted point tenderness to the rhomboid group of the right scapular region. (Continued on the next page)   Pertinent documents in the Veteran’s claims file should be reviewed in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.