Citation Nr: 21015953 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-06 903 DATE: March 18, 2021 ORDER Entitlement to service connection for a lumbar spine disorder, diagnosed as lumbar stenosis and disc disease, is granted. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. FINDING OF FACT The Veteran’s lumbar spine disorder had its onset during service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disorder, diagnosed as lumbar stenosis and disc disease, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1971 to November 1972. He served during the Vietnam era. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, the Agency of Original Jurisdiction (AOJ). In the rating decision, the AOJ denied service connection for a back condition and a neck condition. The Veteran appealed this determination and the present appeal ensued. This matter was previously before the Board in September 2018 when it was remanded for further development to include a VA examination and opinion. The matter was again before the Board in December 2019 when it was remanded for addendum opinions. 1. Entitlement to service connection for a lumbar spine disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Analysis The Veteran asserts entitlement to service connection for a lumbar spine disorder as a result of his military service. He asserts that he began experiencing problems with his lumbar spine during service and such problems have continued to the present day. The Board notes that despite findings to the contrary, the Veterans service treatment records contain a notation dated April 7, 1972, indicating complaints of cramps in his lower back and indicating “lower back strain.” A private nexus opinion was submitted by the Veteran’s physician in November 2014, in which he stated that he reviewed the Veteran’s service treatment records and opined that the Veteran’s back disorder was related to his military service. He did not provide a supporting rationale with this document. In September 2018, the Board remanded for a VA examination and opinion under McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded a back (thoracolumbar spine) VA examination in August 2019. The examiner noted a diagnosis of spinal stenosis in 2009 and a diagnosis of bilateral lower extremity radiculopathy, also in 2009. The Veteran reported these disorders began during military service. He reported that he was a mechanic during service and often worked on vehicles while lying on hard concrete surfaces. The Veteran reported being active in sports. When running, walking, or standing for prolonged periods, feeling of sharp pain would radiate down the bilateral lower legs. He reported that his symptoms worsened and he currently reported symptoms of achy, throbbing, sharp pain, stiffness, and limited movement. Range of motion testing was considered abnormal with pain noted. Radicular pain was noted as constant pain (may be excruciating at times) with moderate paresthesias and /or dysesthesias and numbness. The Veteran reported sharp pain, stiffness, weakness, limited movements, and tenderness on palpation of the paraspinal muscle of the lumbar spine. The impact of this disorder on the Veteran’s ability to work resulted from not being able to stand, walk, sit, or bend for prolonged periods, difficulty climbing stairs, lifting heavy objects, inability to run, jump, and kneel due to pain, stiffness, and limited movements. The examiner noted that an MRI showed borderline spinal stenosis at L3-L4 and mild degenerative disc disease at L5-S1. In separate sections of the report, the examiner found both that the Veteran’s lumbar spine disorder was less likely than not related to service, and that it was at least as likely as not incurred during service. In December 2019, the Board remanded for an addendum opinion, finding the opinion offered by the August 2019 examiner was internally inconsistent as to the timing of the onset of the Veteran’s lumbar spine disorder and due to the inconsistent nexus opinions. Unfortunately, the addendum opinion and rationale submitted in February 2020 failed to provide sufficient clarity as to whether a nexus exists between the Veteran’s lumbar spine disorder and his military service. The examiner opined that the disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale offered was that the Veteran was not diagnosed with his back condition until approximately 30 years after separation from the military. Thus, the examiner stated, the Veteran had “30 years after wear and tear on his back, vs ten months working as a mechanic in the service.” The examiner continued that “[t]here is no evidence in the current medical literature supporting that a short amount of time working on a cold [surface] causes latent back DJD /spinal stenosis. There is, however, evidence in the medical literature, that general wear and tear on the body and aging causes DJD.” The Board finds that the examiner’s rationale failed to address evidence that is favorable to the Veteran. The Veteran’s service treatment records indicate complaints of lower back cramps and lower back strain in 1972. In addition, in its 2019 remand, the Board specifically directed that evidence of VA treatment of lower back pain in 1977 and 1989 be addressed by the examiner. The Veteran also provided lay statements that his lower back disorder began during service. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). An opinion based on inaccurate information is inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007). As the rationale is inadequate, the opinion is entitled to little or no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, the opinion did not substantially comply with the Board’s remand directives as required under Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, remand for another opinion is to be avoided if there is no benefit to the Veteran and a decision can be made on the merits. Soyini v. Derwinski, 1 Vet. App. 540 (1991). As noted, the Veterans service treatment records contain a notation dated April 7, 1972 indicating complaints of cramps in his lower back and indicating “lower back strain.” In addition, in September 2019, VA medical records from August 1977, less than five years post-service, were submitted and associated with the Veteran’s file that noted reports of back strain. Specifically, the Veteran noted something “popping in lower back right side while heavy lifting.” VA records dated September 1977 were also associated with file in September 2019. It was noted that the Veteran, age 25, was playing baseball and running when he had a sudden onset of pain in his lower back with radiation of pain into right lower extremity. He was seen in ER unable to walk because of pain in his back and right lower extremity. He was admitted to the hospital. The record indicated he was “totally disabled for one week” with a diagnosis of acute lumbosacral strain. He was in the hospital for two days. VA medical records from January 1989 were also associated with the Veteran’s file in September 2019 which indicate complaints of low back pain with a diagnosis of lumbar strain. The Veteran reported a history of back trouble and low back pain since he 25 years old (1976). Also noted was the excruciating sudden onset of pain in lower back radiating to right leg. The Veteran was unable to walk or move his right lower extremity due to pain. The examiner did not address this evidence which is favorable to the Veteran’s claim that his lumbar spine disorder began during service. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In Wilson v. Derwinski, 2 Vet. App. 16 (1991), the Court of Appeals for Veterans Claims emphasized that “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” As noted, a private physician submitted a nexus statement in November 2014. He stated that he reviewed the Veteran’s service treatment records prior to forming his opinion. He opined that the Veteran’s back disorder was related to his military service. In addition, the record is replete with examination and medical reports completed by this physician and others in his medical practice pertaining to the Veteran’s lumbar spine disorder symptoms, including low back pain. The Veteran reportedly received care from 1990 to the present, as documented, although records prior to 2002 have been destroyed. The Board finds that the private nexus opinion, in combination with supporting service treatment records, VA medical records, and private medical records is entitled to sufficient probative value along with a finding of continuity of symptomatology of the chronic disability of lumbar stenosis and disc disease to establish a nexus between the Veteran’s service and his lumbar spine disorder. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Providing the benefit of the doubt to the Veteran, the Board finds that service connection for lumbar stenosis and disc disease is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disorder is remanded. The Veteran asserts entitlement to service connection for a cervical spine disorder as a result of his military service. He asserts that he began experiencing problems with his cervical spine during service and such problems have continued to the present day. A private nexus opinion was submitted by the Veteran’s physician in November 2014, in which he stated that he reviewed the Veteran’s service treatment records and opined that the Veteran’s back disorder was related to his military service. He did not provide a supporting rationale with this document. In September 2018, the Board remanded for a VA examination and opinion under McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded a neck (cervical spine) VA examination in August 2019. The examiner noted a diagnosis of degenerative arthritis, intervertebral disc syndrome and bilateral upper extremity radiculopathy, all diagnosed in 2003. The Veteran reported these disorders began during military service. The Veteran reported neck pain with numbness and tingling, achy, throbbing pain and stiffness, pain radiating down extremities to fingers and limited movement, which symptoms worsened since onset in 1997. An October 2003 MRI indicated multilevel degenerative changes, most pronounced at C5-6. In separate sections of the report, the examiner found both that the Veteran’s cervical spine disorder was less likely than not related to service, and was at least as likely as not incurred during service. In December 2019, the Board remanded for an addendum opinion, finding the opinion offered by the August 2019 examiner was internally inconsistent as to the onset of the Veteran’s cervical spine disorder and due to the inconsistent nexus opinions. Unfortunately, the addendum opinion and rationale submitted in February 2020 failed to provide sufficient clarity as to whether a nexus exists between the Veteran’s cervical spine disorder and his military service. The examiner opined that the disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale offered was that the Veteran was not diagnosed with his neck condition until approximately 30 years after separation from the military. The examiner stated, the Veteran had “30 years after wear and tear on his neck, vs ten months working as a mechanic in the service.” The examiner continued that “there is no evidence in the current medical literature supporting that a short amount of time working on a cold [surface] causes latent neck DJD /IVDS. There is, however, evidence in the medical literature, that wear and tear on the body and aging causes DJD.” The Board notes that in the initial examination, the examiner indicated that the Veteran’s symptoms of a cervical neck disorder began in 1997, which is not 30 years post-service. Further, there is documentation in the record that the Veteran was treated for a neck disorder since 1990 by the private physician who offered a positive nexus statement, although the medical records through 2002 have been destroyed. In addition, the examiner did not address the Veteran’s lay statements that symptoms of his cervical neck disorder began during service. The Board finds that the examiner’s rationale was conclusory and failed to address evidence that is favorable to the Veteran, including the Veteran’s lay statements. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). As the rationale is inadequate, the opinion is not entitled to any probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As the opinion is inadequate, it did not substantially comply with the Board’s remand directives as required under Stegall v. West, 11 Vet. App. 268 (1998). Unlike the Veteran’s lumbar spine disability, the private nexus opinion is currently unsupported by evidence of in-service incurrence and continuity of symptomatology of a cervical spine disorder, and thus cannot stand alone to support service connection without an appropriate supporting rationale. The Board therefore finds that a remand is required for an adequate addendum opinion with a sufficient rationale based on all of the evidence of record as to whether the Veteran’s cervical spine disorder is related to his military service. Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The examiner should also provide an opinion as to whether the Veteran’s cervical spine disorder is caused by or aggravated by his service-connected lumbar spine disability. This matter is REMANDED for the following action: 1. Provide the claims file to a different examiner than the examiner who conducted the August 2019 VA examination. The record and a copy of this Remand must be made available to the examiner. The need for an additional examination is left to the discretion of the clinician selected to write the addendum opinion. 2. Following a review of the entire record, the examiner should provide an opinion as stated: a. Whether the Veteran’s cervical spine disorder is at least as likely as not (50 percent or greater probability) had its onset during, or is otherwise related to, the Veteran’s military service. b. Whether the Veteran’s cervical spine disorder is at least as likely as not (50 percent or greater probability) caused by or aggravated by his service-connected lumbar spine disability. In offering an opinion, the examiner must consider the full record, including service treatment records, pertinent post-service treatment records, and lay statements from the Veteran concerning the onset and continuity of his symptoms. A complete rationale must be provided. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.