Citation Nr: 21021277 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-16 954 DATE: April 12, 2021 REMANDED Entitlement to service connection for lumbar spine disability is remanded. Entitlement to service connection for a respiratory disability, to include as due to qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988 to June 1988, and from November 1990 to May 1991. He is a Persian Gulf veteran, having served in Kuwait in 1991. See 38 C.F.R. § 3.317(e) & DD 214 (February 2014). These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A July 2019 Board decision denied the above claims. The Veteran appealed the Board’s July 2019 decision to the United States Court of Appeals for Veterans Claims. An October 2020 joint motion for remand (JMR) and Court Order vacated the Board’s July 2019 decision and remanded the claim to the Board for action consistent with the terms of the JMR. The Board finds that more development is necessary prior to final adjudication of the claims on appeal. 1. Entitlement to service connection for lumbar spine disability. The Veteran contends that he has a current lumbar spine disability that is related to an in-service injury. See VA 21-4138 Statement in Support of Claim (July 2012). In October 2020, the Court found that the June 2013 and April 2016 VA examinations of record were inadequate as they were based, in part, on an inaccurate factual premise. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The June 2013 VA examiner provided a negative nexus opinion and reasoned that the Veteran’s in-service back “condition resolved without residual and is not the etiology of the veteran’s current back condition.” See VA Examination (June 2013). Similarly, the April 2016 VA examiner opined that the Veteran’s lumbar spine disability was less likely than not related to service, providing the rationale that “[r]eview of the STR [(service treatment records)] and medical record shows the veteran suffered a back contusion in 1991 which resolved seperation [sic] noted normal back exam.” See C&P Exam (April 2016). However, the Court found that in providing these opinions, the VA examiners failed to acknowledge that the Veteran’s April 8, 1991, normal separation examination, see STR (March 2013), was prior to his April 17, 1991 in-service back injury, see STR (March 2013). This renders the June 2013 and April 2016 VA medical opinions inadequate, see Reonal, 5 Vet. App. at 461. Additionally, both opinions indicate that the negative nexus opinions were provided based on the lack of an in-service diagnosis for the Veteran’s current lumbar disabilities. The June 2013 VA examiner’s reasoning also included that the Veteran’s osteoarthritis and lower lumbar disc herniation “were not noted during military service….” See VA Examination (June 2013). The April 2016 VA examiner’s reasoning also included that “[t]here is no evidence the veterans current back condition was caused by an event while on active duty.” See C&P Exam (April 2016). However, an in-service diagnosis is not required to establish service connection. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, to ensure that VA has met its duty to assist, remand is required. 38 C.F.R. § 3.159(c)(4). 2. Entitlement to service connection for a respiratory disability, to include as due to qualifying chronic disability under 38 C.F.R. § 3.317. The Veteran contends that he has a current respiratory disability, other than allergies or asthma, that is related to his service in the Persian Gulf War. See VA 21-4138 Statement in Support of Claim (July 2012). Here, the Board finds that the June 2013 and April 2016 VA examinations of record are also inadequate to adjudicate the Veteran’s claim for service connection for respiratory disability. The June 2013 VA examiner opined that the Veteran’s current respiratory condition was typical allergic rhinitis. However, the examiner provided no analysis of how it was concluded that the Veteran’s condition is allergic rhinitis, despite noting negative test results for all allergens. A medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). As the examiner provided no analysis to support the conclusion, which is inconsistent with the existing evidence, the opinion is inadequate. The April 2016 VA examiner’s opinion indicates that the negative nexus opinion was provided based on the lack of an in-service diagnosis. The examiner opined that the Veteran’s service treatment records showed “no evidence of the diagnosis or treatment for a chronic respiratory condition while on active duty.” However, as noted above, an in-service diagnosis is not required to establish service connection. Cosman, supra; see also 38 C.F.R. § 3.303(d). Additionally, neither examiner discussed the medical evidence which indicates that the Veteran has a respiratory condition related to his Persian Gulf War service. Periodic health assessments from the Veteran’s Army Reserve and National Guard treatment records show that attending medical providers commented that the Veteran had a chronic cough with abnormal breathing test prior to starting prescription Prednisone, and that the Veteran has rhinitis due to oil exposure. See STR at 260, 221 (March 2019). Further, although the medical record indicates that allergies and asthma have been ruled out, neither medical opinion addressed whether the Veteran’s claimed respiratory disability is a disability due to undiagnosed illness or part of a medically unexplained chronic multi symptom illness under 38 C.F.R. § 3.317 given that the Veteran is a Persian Gulf veteran, and has claimed that his Persian Gulf War service caused or contributed to his disability. Where VA provides an examination or obtains an opinion, it must be adequate. Barr, supra. Therefore, to ensure that VA has met its duty to assist, remand is required. 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate clinician to address the nature and etiology of the Veteran’s lumbar spine osteoarthritis, and any other lumbar spine disability currently shown. Indicate when the disease(s) was first documented; and opine on whether it is at least as likely as not related to an in-service injury, event, or disease, including the April 17, 1991, in-service back injury—which occurred after his April 8, 1991 separation examination. The opinion should clearly identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE: An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. 2. Obtain a VA medical opinion from an appropriate clinician to address the nature and etiology of the Veteran’s claimed respiratory disability. NOTE: An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. As the Veteran has argued that his respiratory disability is a qualifying disability based on his status as a Persian Gulf veteran, the examiner should address each of the following: (a.) As to respiratory disability, record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. i. Identify the Veteran’s objective indications of a disability, if any. “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). ii. By history, physical examination, or laboratory testing, can the Veteran’s objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. iii. If the Veteran’s objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran’s departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. iv. If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the etiology of the disease or disability population as a whole. v. If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. (b.) As to direct service connection: If both the etiology and pathophysiology are partially understood or fully understood as to respiratory disability, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed condition(s) was incurred in, or is otherwise related to, his service in the Persian Gulf War. (Continued on the next page)   3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner 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). James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thaddaeus J. Cox, 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.