Citation Nr: 21031430 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 09-47 042 DATE: May 21, 2021 REMANDED The claim of entitlement to service connection for a cervical spine disorder is remanded. The claim of entitlement to service connection for a left upper extremity disorder is remanded. The claim of entitlement to service connection for a thoracic spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1981 to October 1985. His claims come before the Board of Veterans' Appeals (Board) on appeal of a December 2008 Department of Veterans Affairs (VA) rating decision. The Board affirmed the rating decision in August 2014. The Veteran then appealed the Board's decision to the United States Court Of Appeals For Veterans Claims (Court), and in June 2015, based on a Joint Motion For Partial Remand (JMPR), the Court remanded this matter to the Board for action consistent with the terms of the JMPR. In May 2016 and April 2018, the Board remanded these claims to the AOJ, and in May 2019, the Board again denied them. The Veteran appealed the Board's decision to the Court. In a December 2019 Order, based on a Joint Motion For Remand (JMR), the Court remanded the matter to the Board for action consistent with the terms of the JMR. The Board again remanded these claims to the AOJ in June 2020. Entitlement to service connection for a cervical spine disorder Entitlement to service connection for a left upper extremity disorder Entitlement to service connection for a thoracic spine disorder The Veteran seeks service connection for back, neck and left upper extremity disorders on a direct basis as related to injuries he sustained in 1983, during service. Post-service medical evidence confirms that he has significant disabilities of the back, neck and left upper extremity. Service treatment records confirm that he sustained injuries during service, including in May 1983 (head laceration after falling out of his rack onto concrete, requiring stitches), and June 1983 (contusion of the right temporal area of the head and a malocclusion after running, being tripped, hitting his head on a cement floor and experiencing a temporary loss of consciousness). However, there is no evidence of chronic neck, left upper extremity or back damage during service, within a year of the Veteran's 1985 discharge from service, or prior to 2002. In 2002, x-rays revealed cervical arthritis and an old thoracic spine injury (compression fracture without neurological sequela), the latter establishing that the Veteran injured his spine prior to that date. The question is whether these disabilities took some time to develop and are related to the 1983 injuries. This matter is complicated by the fact that the Veteran sustained multiple additional injuries since service, including within a couple of years of discharge (in approximately 1987, 1988 or 1989) when he fell off a ladder onto his back, during a 2006 fall in the shower and a 2007 or 2008 motor vehicle accident. In addition, the Veteran's reported medical histories, written statements and testimony describing the in-service and post-service injuries and the treatment he received in response are significantly inconsistent, calling into question his credibility. The Veteran has submitted, and VA has obtained, multiple medical opinions addressing the etiology of his neck, left upper extremity and back disabilities, but each is inadequate, based on either an inaccurate version of the facts, a lack of consideration of all critical evidence of record, or lay statements that are not credible. Based on the Court's JMR recognizing some of these inadequacies, the Board last remanded these claims to the AOJ in June 2020 in an attempt to secure an addendum opinion correcting them. In January 2021, a new VA examiner agreed with some of the private opinions that injuries like the one described by the Veteran (being lifting and dropped on his head) might very well lead to back and neck pathology and resultant nerve damage, but concluded that, in the Veteran's case, his neck, left upper extremity and back disabilities are less likely than not related to the 1983 injuries. This opinion too is inadequate as the examiner based this conclusion on a finding that the Veteran had no significant complaints or symptoms prior to 2006, ignoring the 2002 evidence noted above and evidence relating to the late 1980s intervening injury. The Board recognizes that this case has been pending since 2007 and the subject of multiple Board Remands and two appeals to the Court and is hesitant to take any action ensuring further delay. However, until it obtains an adequate opinion, it does not have the information it needs to decide these claims. In securing private opinions in support of this appeal, the Veteran forwarded his medical reviewers a statement of facts, upon which the reviewers partially relied in offering their opinions. Unfortunately, however, some of the facts noted are not corroborated in the record or are not credible. For instance, the Veteran claimed that he was diagnosed with arthritis of the spine in 1987, but there is no such diagnosis of record. In an effort to secure an adequate opinion in this case, the Veteran should be provided an opportunity to submit an addendum opinion from any one of his reviewers contemplating all critical competent and credible evidence listed below and/or records from the 1980s substantiating the reported diagnosis. In addition, during the Veteran's June 2014 hearing, he indicated that he was in receipt of Social Security benefits for the disabilities at issue in this appeal. The records upon which the Social Security Administration (SSA) relied in awarding the Veteran these benefits are pertinent to these claims and must be secured. These claims are therefore REMANDED for the following action: 1. Obtain and associate with this file the records upon which SSA relied in awarding the Veteran disability benefits. 2. Provide the Veteran an opportunity to submit medical evidence substantiating his assertion that he was diagnosed with arthritis of the spine within a couple of years of service (sometime between 1987 and 1989), following his fall from a ladder. Explain to him that such evidence is critical as at least one of the private medical opinions he submitted in support of this appeal is based partially on this unsubstantiated diagnosis. Notify the Veteran that he may submit an addendum opinion from any one of the individuals who offered an opinion in this case, which follows the guidance below. 3. Return this case to the January 2021 VA examiner for an addendum opinion addressing more comprehensively the cause of the Veteran's neck, left upper extremity and back disabilities. This opinion MUST discuss the significance of ALL of the following critical evidence: a. the Veteran's 1983 injuries AS DESCRIBED IN THE SERVICE TREATMENT RECORDS AND BY EG IN HIS MAY 2014 WRITTEN STATEMENT (do not rely on Veteran's unsubstantiated description of injuries); b. the Veteran's July 1985 separation examination report; c. May 2014 and February 2018 written statements of FW, the Veteran's brother, recalling the Veteran's complaints of neck and left arm pain since service in 1985; d. the November 2008 VA joints examination report referring, in part, to several childhood injuries, back pain following high school but prior to service while working at a cheese factory, post-service physical employment, a 15-plus year history of upper back pain subsequent to a fall from a ladder, neck and thoracic back pain since 1988, a 1989 job injury, a 2006 fall into the shower and subsequent development of left arm weakness, a March 15, 2007 fall requiring emergency care, and a 2007 motor vehicle accident. e. VA and private treatment records dated since 2006, which refer to various injuries, including the fall in the shower (4 years prior to 2009) and one involving the left arm (2006 sternum contusion and/or rotator cuff), neck and thoracic pain since 1988 and 1989, and arm symptoms appearing 4 years prior to 2009. f. May 2002 x-rays showing cervical arthritis without radiculopathy and an old thoracic spine injury and a mild degree compression fracture; g. a July 2002 rheumatology consultation report noting a 15-year history of upper back and thoracic pain; h. a May 2014 opinion of CP, MSPT; i. a May 2014 opinion of TN, DC; j. an undated opinion of MB, DC, submitted in March 2016; and k. a November 2018 opinion of MS, M.D (not previously addressed in January 2021 opinion). After reviewing all critical evidence listed and the body of this Remand, the examiner should indicate whether, based on the descriptions of the 1983 injuries provided in the service treatment records and by EG, it is still possible such injuries would later cause neck, left upper extremity and back pathology to develop (positive January 2021 opinion in this regard based solely on Veteran's unsubstantiated description). Focusing on the November 2008 VA examination report and injuries described in treatment records dated since 2006, the examiner should specifically discuss the significance of the Veteran's late 1980s fall from a ladder and post-fall treatment and the abnormal neck and back findings shown on testing in 2002 (prior opinion did not address this evidence). Considering how long it takes for neck, left upper extremity and back disabilities to develop following injuries and focusing on 2002 evidence showing cervical arthritis and an old thoracic compression fracture, the examiner should offer an opinion as to whether the Veteran's neck disability, left upper extremity disability and back disability are at least as likely as not (50 percent or greater probability) related to the Veteran's active service, including the 1983 injuries, or more likely related to a post-service injury, including any that occurred prior to 2002. If this opinion differs from Dr. MS's November 2018, the examiner should explain why. The examiner should provide clear rationale for each opinion with references to the evidence listed above. 4. Review the VA examiner's opinion to ensure that it complies with the Board's requests (must address the significance of each item of evidence listed above), before returning the case to the Board for appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. N. 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.