Citation Nr: 21012611 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 12-18 737 DATE: March 4, 2021 ORDER Entitlement to service connection for disabilities of the cervical spine to include cervical intervertebral disc disorders, osteoarthritis, and spinal stenosis is granted. REMANDED Entitlement to a disability rating exceeding 30 percent for bilateral pes planus, mild to moderate foot metatarsus primus varus hallux valgus with associated mild bunion formation, bilateral hammertoe deformities, bilateral moderate-sized plantar calcaneal enthesophytes/spurs, and osteopenia, is remanded. Entitlement to a disability rating exceeding 20 percent for degenerative disc disease and arthritis of the thoracolumbar spine prior to September 5, 2017 is remanded. Entitlement to a disability rating exceeding 40 percent for degenerative disc disease and arthritis of the thoracolumbar spine from September 5, 2017 is remanded. Entitlement to a disability rating exceeding 10 percent prior to May 26, 2015 for neuralgia, right sciatic nerve is remanded. Entitlement to a disability rating exceeding 20 percent from May 26, 2015 to September 5, 2017 for neuralgia, right sciatic nerve is remanded. Entitlement to a disability rating exceeding 40 percent from September 5, 2017 for neuralgia, right sciatic nerve is remanded. Entitlement to a disability rating exceeding 10 percent prior to May 26, 2015 for neuralgia, left sciatic nerve is remanded. Entitlement to a disability rating exceeding 20 percent from May 26, 2015 for neuralgia, left sciatic nerve is remanded. FINDING OF FACT The evidence shows that the Veteran’s disabilities of the cervical spine to include cervical intervertebral disc disorders, osteoarthritis, and spinal stenosis have been caused and aggravated by the Veteran’s service-connected disabilities, to include bilateral foot disabilities and thoracolumbar spine disabilities. CONCLUSION OF LAW The criteria for service connection for the Veteran’s disabilities of the cervical spine to include cervical intervertebral disc disorders, osteoarthritis, and spinal stenosis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1975 to October 1975. This appeal comes to the Board of Veterans’ Appeals (Board) from March 2010, September 2011, December 2011, and January 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a January 2017 hearing before the undersigned Veterans Law Judge. The Board remanded these matters to the Agency of Original Jurisdiction (AOJ) in May 2017 for additional evidentiary development, and the Board denied the Veteran’s claims in a March 2018 decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC or Court), and the CAVC granted a Joint Motion for Remand (JMR) in April 2019 vacating the Board’s decision and remanding these matters to the Board to obtain outstanding treatment records and address deficiencies in VA examinations. The Board remanded these matters to the AOJ in September 2019 to address the concerns in the JMR. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Ward v. Wilkie, 31 Vet. App. 233 (2019), the CAVC clarified that incremental increase in disability (any additional impairment of earning capacity) in non-service-connected disabilities resulting from a service-connected condition regardless of its permanence may be a basis for secondary service connection under 38 C.F.R. § 3.310. The Board finds the criteria for secondary service connection under 38 C.F.R. § 3.310 have been met. VA examinations confirmed the Veteran has current disabilities of the cervical spine to include cervical intervertebral disc disorders, osteoarthritis, and spinal stenosis. See, e.g., September 2017 VA cervical spine examination. VA examiners and private treatment providers indicated the Veteran’s service-connected thoracolumbar spine and foot disabilities have at least as likely as not caused and aggravated the Veteran’s cervical spine disabilities. See, e.g., December 2011 opinion from L.H., M.D.. However, the record contains some negative nexus opinions from VA examiners as well. See, e.g., September 2017 VA cervical spine examination. As noted in the JMR and the Board’s prior decisions and remand orders, the rationale cited in support of the examiners’ conclusions is conclusory and deficient. While the Board found the positive opinions to be conclusory and denied the Veteran’s claims on the basis of the negative opinions in the vacated March 2018 decision, the JMR notes that the negative opinions did not adequately address the positive opinions and outstanding relevant records. Moreover, the Board finds that the negative opinions of record at the time of the Board’s prior decision focused on the question of permanent or chronic aggravation without addressing the possibility of temporary aggravation noted in the subsequent decision by the CAVC in Ward. See, e.g., September 2017 VA cervical spine examination. While the AOJ obtained an additional January 2020 negative nexus opinion on remand to address the concerns in the JMR, the Board affords finds the opinion contains substantially similar deficiencies as the earlier opinions. It does not address positive nexus opinions in the record including a May 2008 opinion from a VA examiner, who indicated that gait disruptions from the Veteran’s service-connected pes planus caused asymmetric forces to the axial skeleton in the context of the Veteran’s competent and credible lay statements. See also Veteran’s December 2011 Statement in Support of Claim (noting that the Veteran’s weakness in the lower back placed hardship on his upper back and neck). While the May 2008 opinion focused on the Veteran’s back, the Board finds that the rationale addressing the axial skeleton applies to the neck as well and supports the subsequent conclusions of L.H., M.D. that the Veteran’s cervical spine disabilities have been caused and aggravated by the Veteran’s service-connected disabilities. While the January 2020 VA examiner indicated that the Veteran’s cervical spine disabilities were likely caused by a car accident after his military service, the examiner was not able to provide an opinion regarding aggravation without resorting to speculation. The Board ultimately finds the positive opinions to be more persuasive in the context of the totality of the evidence and affords them greater probative value than the negative opinions. As noted by the VA examiners, while the issue on appeal has been stated as a claim for service connection for upper back and neck disabilities, upper back disabilities are within the scope of the Veteran’s existing service connection and disability ratings for a thoracolumbar spine disability. Therefore, the Board has restated the issue on appeal as a claim for service connection for cervical spine disabilities, which may be compensable under rating criteria specific to the cervical spine under the General Rating Formula for Disease and Injuries of the Spine. See C.F.R. § 4.71a, DC 5242 (providing a 30 percent rating for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine). After weighing the positive and negative evidence, the Board finds the evidence shows that the Veteran’s cervical spine disabilities have been caused and aggravated by his service-connected disabilities. Accordingly, the claim for service connection is granted. REASONS FOR REMAND As noted in the JMR and the Board’s September 2019 remand order, the Veteran’s VA treatment records contain notations indicating that records including pertinent test results and private treatment notes were scanned into the VistA computer system in VA’s possession. On remand, the AOJ obtained additional VA treatment records with notations indicating records including private records from Elite Pain Consultants were uploaded to VistA. See, e.g., January 2019 Addendum in records received from Mountain Home VA Medical Center and Campbell County VA Community-Based Outpatient Clinic. In a November 2019 letter, the AOJ requested that the Veteran sign release forms for private treatment providers, but the AOJ did not obtain copies of records already in VA’s possession (uploaded to VistA) and associate them with the claims file as both the JMR and the Board’s remand directives indicated it should. The AOJ did not include documentation in the file of its attempts to obtain such records beyond its request to the Veteran to sign release forms, which does not cite any specific records. On remand, the AOJ should make additional attempts to obtain and locate all outstanding relevant records in the possession of VA including copies of all records uploaded to VistA. The AOJ should document its efforts to obtain these records in the claims file including any requests for assistance to the Veteran and his representatives. After obtaining all outstanding relevant records and associating them with the Veteran’s claims file, the AOJ should afford the Veteran additional examinations of the feet and spine. The Board’s September 2019 remand order emphasized that the AOJ should obtain examinations that assess the Veteran’s disability picture on the basis of the additional evidence using updated disability benefits questionnaires. Since the Board’s prior remand order, the rating criteria for evaluating disabilities of the feet and spine have substantially changed effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Therefore, the AOJ should obtain additional VA examinations of the Veteran’s disabilities under both the new criteria effective February 7, 2021 and the older criteria prior to February 7, 2021 considering the totality of the evidence including the outstanding treatment records in VistA. See also February 2021 Informal Hearing Presentation. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records to include records from Elite Pain Consultants and copies of all pertinent records that VA scanned into VistA. Specific examples are cited in the March 2019 JMR and the Board’s September 2019 remand order. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all outstanding relevant records with the Veteran’s claims file, the AOJ should schedule the Veteran for examinations by appropriate clinicians to determine the current severity of his service-connected disabilities of the feet and spine under both the rating criteria in effective prior to February 7, 2021 and the revised rating criteria effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). The AOJ should ensure that the examiners provide full descriptions of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiners must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiners should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiners must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.