Citation Nr: 21012091 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 10-28 367 DATE: March 3, 2021 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a chest wall disability, to include costochondritis and chest pain, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Marine Corps from October 1994 to October 1998. The Veteran is a Gulf War Era Veteran. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in March 2017. A transcript of the hearing is associated with the claims file. This case was previously before the Board in July 2017 and June 2019. In July 2017, the case was remanded to obtain updated treatment records and a VA examination regarding his costochondritis. In June 2019, the case was remanded to obtain a new VA examination to determine the nature and etiology of his chest pain, to include costochondritis or other chest pain, to include consideration of Saunders v. Wilkie, 885 F.3d. 1356 (Fed. Cir. 2018). The case has been returned to the Board for appellate consideration. The Board finds that, unfortunately, another remand is necessary prior to adjudicating this claim. In November 2019, the Veteran underwent a VA examination to determine the nature and etiology of his chest pain, to include costochondritis, specifically as to the appropriateness of his diagnosis and treatment by VA Medical Center (VAMC). The examiner opined that it was less likely as not that the Veteran’s costochondritis was caused by the Veteran’s chiropractic treatment at VAMC, that the diagnosis of costochondritis was appropriate and timely, and that the standard of care was met in this case. The examiner supported the opinion by stating chiropractic care was not the cause of the Veteran’s costochondritis; chiropractic care was, the examiner stated, used to treat costochondritis. The examiner went on to state that costochondritis usually has no definite cause and listed possible causes for costochondritis, generally, but these were general causes and not specific to the Veteran’s medical history or file. The examiner went on to conclude that it was less likely as not that the Veteran’s chest wall pain, or costochondritis, was caused or became worse as a result of VA treatment; no additional disability resulted from carelessness, negligence, lack of skill, or similar instance of fault on the part of VA personnel; incidence of fault on the part of VA personnel from an event that could not have been previously foreseen by a reasonable healthcare provider; or the failure of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. These opinions did not include a thorough rationale, but are conclusory statements not supported utilizing specific evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Further, as outlined above, the examiner stated that chiropractic care was utilized to treat costochondritis; as such, the examiner is asserting that chiropractic care can have an effect on the chest wall, and pain thereof. Yet, the examiner did not reconcile how a treatment that can impact the chest wall was less likely as not causally related to a disability, that he conceded has no definite cause. As a final matter, the examiner did not specifically address the Veteran’s statements that his continuity of symptomatology since the chiropractic visit in question, as directed in the June 2019 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Moreover, the examiner did not address whether a "reasonable health care provider "would have considered the Veteran's additional disabilities to be an ordinary risk of the treatment provided and would have disclosed such risk in connection with such treatment, nor did the examiner specifically address the issue of whether the Veteran had a disability manifested by pain in the ribs or chest wall, as provided in Saunders, 885 F.3d. at 1356. Id. In light of the above, upon remand, the Veteran should receive a new VA examination to determine the nature and etiology of his chest wall pain, to include costochondritis, specifically pursuant to eligibility for compensation pursuant to 38 U.S.C. § 1151. The matters are REMANDED for the following action: The Veteran should be afforded a VA examination with the appropriate specialist, in connection with his claim for compensation under the provisions of 38 U.S.C. § 1151. If possible, the evaluation should be conducted by a provider who has neither evaluated the Veteran, nor opined as to the issue on appeal; if possible, this should be a provider who has clinical or academic expertise in musculoskeletal disorders, such as an orthopedist or a physiatrist. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should elicit a relevant history from the Veteran in connection with the examination. It should also be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology and the onset thereof. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation based upon, and supported by, the evidence of record. The examiner must respond to the following inquiries: (a.) Is it at least as likely as not (i.e., 50 percent or more probable) that that the Veteran has any additional disabilities including a rib or respiratory disorder, including but not exclusive of chest wall pain, rib pain, and costochondritis, after his VA medical treatment by a chiropractor from April 2011 to November 2011? The examiner must also address whether Veteran has a disability manifested by pain in the ribs or chest wall. The examiner should specifically indicate whether the Veteran has or had had functional impairment of earning capacity of the chest wall or ribs, in accord with the holding of Saunders v. Wilkie, 885 F.3d. 1356 (Fed. Cir. 2018). To determine whether a Veteran has additional disability, the examiner should compare the Veteran's condition immediately before the beginning of the VA medical treatment in April 2011, upon which the claim is based, to the Veteran's condition after the VA treatment was discontinued in November 2011. (b.) If the Veteran has any additional disability, is it at least as likely as not (i.e., 50 percent or more probable) that any additional disability was caused by or became worse as the result of the treatment provided by the VA facility in from April to November 2011? In rendering this opinion, the examiner should specifically discuss whether the proximate cause of any additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or was the result of an event that could not reasonably have been foreseen or anticipated by a competent and prudent health care provider. (c.) The examiner should also address whether a "reasonable health care provider "would have considered the Veteran's additional disabilities to be an ordinary risk of the treatment provided and would have disclosed such risk in connection with such treatment, regardless of what risks the treatment provider actually foresaw and disclosed. In rendering these opinions, the VA examiner is asked to consider the Veteran's lay statements, including his March 2017 testimony, his assertion of continuous symptomatology since the chiropractic service in question, and VA treatment records from the VA North Texas Healthcare System dated from April 2011 to the present, including the VA treatment records dated from January 2012, June 2012, and July 2012 showing a diagnosis of costochondritis. (Continued on the next page)   (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. ANTHONY C. SCIRÉ, JR. Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, Associate 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.