Citation Nr: 21009800 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-01 331 DATE: February 23, 2021 REMANDED Entitlement to service connection for a back disability, to include a cervical spine disability status post cervical fusion and a lumbar spine disability status post lumbar fusion, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1967 to January 1976. This matter comes before the Board of Veteran’s Appeals (Board) from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2019 when the claim was remanded for development. The Board finds the December 2019 remand directives have not been substantially complied with, and the matter is again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2019, the Veteran submitted a statement where he informed VA that he had changed his representation in this matter and that he would have a meeting with his new representative in mid-January 2020. See correspondence of December 2019. The Veteran did not present a completed VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative), nor a VA Form 21-22a (Appointment of Individual as Claimant’s Representative) following that correspondence. In December 2020, in light of the Veteran’s statement announcing the change in representation, VA sent the Veteran a letter requesting clarification as to his representation. This letter invited the Veteran to submit a new VA Form 21-22 or VA Form 21-22a if he wished to change his representation and informed him that if VA did not hear from him in 30 days it would be assumed he wished to continue to be represented by his representative of record, Colorado Division of Veterans Affairs. See correspondence of December 2020. The 30 days conceded to the Veteran to clarify his representation have elapsed and no communication has been received. Accordingly, the Board proceeds with this appeal and continues to recognize the Colorado Division of Veterans Affairs as the representative of record absent express revocation of this appointment. 1. Entitlement to service connection for a back disability, to include a cervical spine disability status post cervical fusion and a lumbar spine disability status post lumbar fusion, is remanded. The Veteran seeks service connection for a back disability. In support of his claim, the Veteran asserts that while deployed in Vietnam, he injured his back in a re-supply ammunition run. He explains he was thrown off a 5-ton vehicle when the vehicle went around a corner too fast in a danger zone. The Veteran noted he lost consciousness and does not remember hitting the ground. The Veteran explains he was given medication for the pain by the medic and had to resume his duties as they were in a remote location with no access to medical treatment. See statement of April 2013. The Veteran also asserted that although he eventually became a drill sergeant, he had to separate from service due to his back pain. He further asserted that after separation from service, he sought medical treatment for his back pain. He explains he was given physical therapy and underwent back surgery shortly thereafter. See statement of September 2020. At the hearing, the Veteran testified that he started to have trouble with his neck and back shortly after his fall from the vehicle in Vietnam. He also asserted that he had back surgery in 1980. See hearing transcript page 3 and 5. The Veteran’s service treatment records (STRs) show that the Veteran was examined in March 1967 for enlistment purposes. The report of medical examination noted a normal clinical evaluation, with the only abnormality noted being a 2.5 cm scar on the left second finger. That report also noted “back pain/weakness (N.C.D.).” The Board notes that N.C.D. means not considered disqualifying or disabling. The Veteran was deemed qualified for service. See report of medical examination of March 1967. The Veteran’s report of medical history, dated March 1967, shows the Veteran marked that he suffered from recurrent back pain and that he was treated for back trouble. The report elaborates that the Veteran was treated for back pain 3 months prior to the examination with medication and that the pain was controlled. See report of medical history for induction, dated March 1967. In January 1970, the Veteran was re-examined, and the clinical evaluation was normal. See Report of Medical examination dated January 1970. The report of medical history, dated January 1970, notes the Veteran was asked about his 1967 back strain, and he reported no problems since then. See report of medical history dated January 1970. In June 2019, the Veteran was examined by VA for his disability. He was administered a Neck (Cervical Spine) Conditions Disability Benefits Questionnaire (Neck DBQ) where a diagnosis of degenerative arthritis of the spine status post cervical spinal fusion was noted and a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (Back DBQ) where it was noted the Veteran underwent a lumbar spine fusion. This June 2019 Back DBQ did not note any other diagnosis. Following these examinations, the examiner subscribed a medical opinion where she opined that the claimed condition clearly and unmistakably pre-existed service as the Veteran’s enlistment examination noted he had been treated for back pain 3 months prior. In favor of this opinion, the examiner noted that the Veteran’s service treatment records (STRs) did not note any treatment, complaints, diagnosis or aggravation of the Veteran’s back condition. The examiner also noted that the Veteran’s STRs did not note any treatment, complaints, diagnosis for a neck condition. The examiner further noted the Veteran’s physically taxing job as a rancher. Finally, the examiner opined that the Veteran’s neck and back conditions are less likely than not related to, caused by or aggravated by any in-service complaint or injury. See medical opinion of June 2019. In October 2019, an addendum opinion was associated with the claims file. The same examiner that subscribed the medical opinion of June 2019, again opined that the claimed condition clearly and unmistakably pre-existed service and was clearly and unmistakably not aggravated by service beyond its natural progression. In favor of this opinion, the examiner noted that as the Veteran is a combat Veteran, his in-service injury of being thrown off a truck was considered but that there was still a fundamental gap in information. The examiner noted that the Veteran entered service with back complaints but that the problems go silent during the service despite the injury in Vietnam. The examiner further speculated that had the Veteran’s radiculopathy and neural deficits that led to the Veteran’s extensive history of surgeries and repetitive invasive procedures and stabilization was incurred in the service, the condition would absolutely been symptomatic during and immediately after service. She further noted that instead there is a gap of medical history of back and neck problems spanning decades which simply does not fit into the natural history of a condition so severe as to merit multiple serious and invasive surgeries of the spine leading to an eventual multilevel fusion. She further stated that there is absolutely no way to ascertain that the Veteran sustained the grave injuries needing surgery from the fall in Vietnam and no way to determine any alleged aggravation without speculation. She also stated that a disability must be considered chronic before a nexus for service connection can be established and that although there is an accepted fall history in service, no permanent residual or chronic disability subject to service connection is shown by the STRs or demonstrated by evidence following service for nearly 40 years. Therefore, the examiner reasoned that a nexus for aggravation for the lumbar spine condition could not be made. See medical opinion of October 2019. That same month, the examiner also subscribed an addendum medical opinion regarding the Veteran’s neck disability where she opined that although the Veteran’s in service injury was considered, there was still a fundamental gap of information spanning decades regarding neck problems, which did not fit into the natural history of a condition so severe as to merit multiple surgeries. Thus, the examiner opined that a nexus for service connection could not be made due to the missing elements of origin and chronicity. She further noted that although there was an accepted in-service fall, the Veteran’s STRs and his medical records following service did not show a permanent residual or chronic disability subject to service connection for nearly 40 years. Therefore, the examiner concluded that a nexus for service connection for the cervical spine condition could not be made. See medical opinion of October 2019. The Board found these medical opinions inadequate for adjudication purposes in its December 2019 decision. The Board noted the opinions erroneously relied on the premise that the Veteran’s records failed to show spine problems for 40 years following his separation from service as his treatment records indicated he underwent a spinal fusion in 1980 or 1982 and that he reported several years of physical therapy prior to the surgery. The Board also clarified that although the Veteran was a part-time farmer in his retirement, his occupation prior to his retirement was that of a waste management supervisor for 22 years and that his October 1994 post-surgery treatment records indicated he was cleared to return to work as a supervisor following the surgical intervention. The Board also clarified that the Veteran had testified that his occupation as an equipment operator at first and then as a supervisor did not require heavy lifting. See December 2019 Board decision. Based on those findings, the Board remanded the matter for new medical opinions that addressed the noted medical information. In January 2020, another medical opinion was associated with the claims file, pursuant to the Board remand directives of December 2019. In this opinion, the examiner noted that there are no medical records indicating objective evidence that there was a cervical fusion in 1980/82 nor medical records indicating that the Veteran went through pre-service physical therapy. She noted that she accepted the Veteran’s lay statements regarding his in-service fall as true. She also noted that the Veteran’s medical records indicated he was a semi-retired rancher which is known to be physically taxing on the body and injuries are likely to happen. She referenced a medical record dated July 2002 and concluded that there was no new medical evidence to add to the already given medical opinions and therefore the opinions could not be changed without resorting to speculation. See medical opinion regarding conflicting medical evidence, dated January 2020. As the examiner declined to offer a new medical opinion by stating that no new medical evidence had been found to add to the already given medical opinions, and as the previous medical opinions of record had been found inadequate by the Board in its December 2019 decision; the Board finds this medical opinion is neither for or against the claim and affords it no probative value. Additionally, the Board notes the examiner erroneously referred to the Veteran’s physical therapy as pre-dating service; when the Veteran’s assertion has been that he underwent physical therapy following his service and prior to his first surgical intervention. In September 2020, another addendum opinion was associated with the claims file. The same examiner that subscribed the previous medical opinions noted having revised the medical records, including medical records dated 1994, where it was noted that the Veteran had undergone a fusion prior to 1994 as shown by CT scan results. She noted that the Veteran’s medical records and the Veteran’s reports were inconsistent as to the date of the cervical fusion (Veteran reported it occurred in 1982 while a doctor noted it occurred in 1980). She also noted that there were no medical records to substantiate the Veteran’s assertion of having undergone physical therapy for years prior to his surgery nor any medical records to indicate why the Veteran’s fusion was done. Thus, she concluded that it would be mere speculation on her behalf to say that the claimed cervical spine fusion was due to the events/injuries that occurred during his active service from 1967 to 1976 as the fusion took place either 4 or 6 years post service. See addendum opinion dated September 2020. As the examiner determined she could not opine on the matter at hand as it would be speculation on her behalf, this medical opinion is neither for or against the claim of service connection for a back disability, and the Board affords it no probative value. Based on the above, the Board finds the December 2019 remand directives have not been substantially complied with and the matter must be remanded for a new medical examination and opinion. The Board notes the examiner that subscribed the medical opinions of record expressed she could not provide the requested opinion without resorting to speculation. See medical opinion of September 2020. In consideration to that limitation, as well as the Veteran’s complicated and extensive medical history regarding his back disability, the Board also finds that the RO must make reasonable efforts to provide the Veteran with a new examination and medical opinion by an orthopedic surgeon or any other specialist in spinal disabilities. If the RO, after making reasonable efforts- which must be documented in the claims file, is unable to provide the Veteran with an examination and medical opinion by an orthopedic surgeon or a specialist in spinal disabilities, the RO must refer the matter to another examiner, different than the nurse practitioner who subscribed the inadequate medical opinions of record and who expressed her inability to provide the requested opinions without resorting to speculation. The matter is REMANDED for the following actions: 1. Update existing medical records. All responses, including negative ones, must be associated with the claims file. 2. Schedule the Veteran for a new examination for the Veteran’s claimed back disability by an orthopedic surgeon or any other specialist in spinal disabilities. After a thorough review of the claims file, to include the Veteran’s testimony at the hearing, his lay statements of record, as well as this remand, the examiner is asked to opine: a. Whether there is clear and unmistakable evidence that the Veteran’s back disability pre-existed service. Specify the condition/diagnosis that pre-existed service, the medical evidence the opinion is based on and provide a complete rationale for the opinion expressed. i. The examiner must address the notation in the Veteran’s Report of Medical Examination for enlistment regarding being treated for back pain prior to service and whether this notation constitutes clear and unmistakable evidence that the Veteran’s disability pre-existed service. Provide a complete rationale. ii. The examiner is advised that “clear and unmistakable evidence” is an onerous evidentiary standard and means that the evidence is undebatable. However, it does not require the absence of conflicting evidence. Vanerson v. West, 12 Vet. App. 254 (1999); Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). b. If the examiner determines the condition clearly and unmistakably pre-existed service, then the examiner is asked to opine whether there is clear and unmistakable evidence that the Veteran’s back disability was NOT aggravated beyond its natural progression, by the Veteran’s service. i. The examiner is asked to address the Veteran’s competent lay assertions of continued back pain following his in-service fall in Vietnam, that he underwent physical therapy and spinal surgery in 1980/1982 (4 to 6 years following his separation from service) as well as the medical records for August 1994 that note the Veteran’s surgical history of a cervical fusion from C5 through C7 prior to that date as shown by the noted CT results. ii. The examiner is advised that “aggravation” is an increase in severity, beyond the natural progression of the disorder. Lack of aggravation must be proven with affirmative evidence of no aggravation, not simply a lack of treatment. c. If the examiner determines that the Veteran’s condition did not clearly and unmistakably pre-exist his service, the examiner is asked to opine whether the Veteran’s back disability (to include his cervical spine disability and to include his lumbar spine disability) is etiologically related to his military service. In rendering this opinion, the examiner must address the Veteran’s competent lay assertions regarding: i. Being thrown from a speeding 5-ton vehicle while in Vietnam, ii. His continued pain following the event, iii. The Veteran’s competent assertions regarding physical therapy following service, iv. The Veteran’s competent report of having undergone back surgery in 1980/82. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The Board notes the Veteran’s medical records are unclear regarding his first surgical intervention as some reports note it happened in 1980 while others note it happened in 1982. The Board notes this confusion in dates should not be used against the Veteran as the evidence of record supports the finding that the Veteran did go through a surgical procedure prior to 1989 (see physical examination report for the Department of Transportation dated 1989 where the Veteran reports a history of neck surgery, associated with the claims file in January 2019); either in 1980 or 1982. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.