Citation Nr: 21032570 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-32 890 DATE: May 27, 2021 REMANDED Entitlement to service connection for a cervical spine (neck) disability is remanded. Entitlement to service connection for bilateral upper extremity (BUE) nerve disability (claimed as numbness and tingling bilateral upper extremities) is remanded. Entitlement to service connection for right lower extremity (RLE) disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from October1969 to September 1973. These matters come before the Board of Veteran's Appeals (Board) on appeal from an April 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript is associated with the file. In November 2019, the Board remanded the Veteran's claim for service connection for RLE disability and denied his service connection claims for neck disability and BUE nerve disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (JMPR) and, in a November 2020 Court Order, the Court granted the JMPR, vacating the Board's November 2019 decision and remanding the matters of service connection claims for neck disability and BUE nerve disability for compliance with the JMPR. As explained below, remand is again necessary. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for BUE nerve disability (claimed as numbness and tingling bilateral upper extremities). 3. Entitlement to service connection for RLE disability. Issues 1 -3: To ensure that VA has met is duty to assist, remand is necessary for the following reasons. In January 2020, a Social Security Administration (SSA) Profile and Benefit Data was associated with the claims file, showing that the Veteran has been in receipt of SSA benefits since November 2012. However, the medical records used to support the decision have not been associated with the Veteran's claims file. See SSA Profile and Benefit Data (January 2020). See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009) (VA's duty to assist is limited to obtaining relevant SSA records, defined as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim."). Issues 1 & 2: The Veteran contends that he has a current disability of the neck and BUE related to injury from removing an external fuel tank wing (excessively heavy) that contained 200 gallons of fuel. See Hearing Testimony (June 2019). It is noted that service connected has been established for back disability arising from this incident. In a January 2015 statement, the Veteran reported that, at the time of the fuel tank incident, his "arms and torso" were "violently jerked downward" causing him pain "that radiated thu [sic] my arms and shoulder and from the base of my skull to my tailbone." See Correspondence (January 2015). The Board finds that remand is necessary to obtain a medical opinion as there is sufficient evidence of an in-service event and a current disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The JMR noted VA's grant of service connection for a back disability as due to removing an external wing fuel tank (200 gallons) was sufficient to establish an event had occurred in service. The record also shows that the Veteran has current diagnoses of degenerative joint disease of cervical spine and neuropathy of arms. See e.g. CAPRI (March 2014). Therefore, as no VA medical opinion has yet been obtained on the question of whether the Veteran's current neck disability and/or BUE disability is related to the same event as causing his service-connected back disability remand is required. The Board acknowledges that favorable medical opinions, dated in January 2015 and June 2019, were submitted in support of the claims. However, the Board finds that they are inadequate for adjudication purposes. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). An adequate medical opinion must be "accurate and fully descriptive," 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran's prior medical history, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, the opinion "must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). An adequate medical examination report or opinion must also "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In sum, although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303 Here, a January 2015 letter from a private medical provider reflects that the Veteran had "worsening back and neck problems ever since he suffered an injury to those areas of his spine in October 1971." He stated that it is impossible to pinpoint exact cause of the Veteran's cervical injury. He concluded that the Veteran's "current right lower extremity and cervical symptoms and associated debility [sic] are more likely than not related to the accident" of October 1971. The Veteran provided another letter from the same medical provider in June 2019. The letter is entirely a duplicate letter with the exception of the date on the letter, which was changed to June 2019. While the Veteran has submitted identical private medical opinions, they are inadequate because they provide no rationale for the conclusions reached. Nieves-Rodriguez, 22 Vet. App. 301. In the same vein, the opinion is incongruous insofar as it reflects that it is impossible to ascertain the cause of the Veteran's neck injury and later states that his "current right lower extremity and cervical symptoms and associated debility [sic] are more likely than not related to the accident" of October 1971. Also, the opinion identified no records reviewed or relevant clinical findings pertaining the conditions addressed, to include evidence contemporaneous with the Veteran's active service such as his May 1973 service separation examination, which showed normal clinical evaluation of the spine. This casts doubt on the medical opinions' foundation. See Ardison, 6 Vet. App. 407. Issue 3: The Veteran contends that he has RLE disability, claimed as pain and numbness, associated with his service-connected lumbar spine disability. See Notice of Disagreement (January 2015). At his February 2020 VA examination, the Veteran reported having symptoms intermittently but lately constantly with pain in the back radiating to both sides. See C&P Exam (February 2020). For the following reasons, the Board finds that remand is again necessary. 38 C.F.R. § 3.159(c); Stegall v. West, 11 Vet. App. 268 (1998). The Board previously remanded the Veteran's claim for a VA examination requesting an opinion as to the nature and etiology of any RLE disability to include symptoms of pain and numbness. See BVA Decision (November 2019). The Board specifically requested an opinion as to (1) whether it is at least as likely as not related to an in-service injury, event, or disease; (2) whether it is at least as likely as not is (a) proximately due to service-connected low back disability, or (b) aggravated beyond its natural progression by service-connected low back disability. The Board requested complete rationale. The February 2020 VA examination and medical opinion does not adequately answer these questions. First, neither the examination nor the opinion provides adequate rationale with regard to the Board's first question whether RLE disability is at least as likely as not related to an in-service injury, event, or disease. Both provide that the Veteran likely has radiculopathy "that is outside the scope of the exam request therefore the veteran's claimed right lower extremity nerve disability to include symptoms of pain and numbness is less likely than not incurred in or caused by the in-service illness, event, or injury." This conclusion does not provide the Board a reasoned rationale explaining why such finding supports the negative conclusion. See Stefl, 21 Vet. App. at 124 ("a medical opinion... must support its conclusion with analysis that the Board can consider and weigh against contrary opinions"). Significantly, while the examiner suggested the possibility that the Veteran's symptoms are due to radiculopathy, the examiner did not provide a clear conclusion, instead stating that the Veteran "likely" has radiculopathy. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (stating a medical examiner's use of ambivalent or noncommittal phrases "should have signaled to the Board that the medical opinion was speculative and of little probative value"). It is noted that the service connection has been established for traumatic arthritis of the spine and associated left lower extremity radiculopathy. To the extent that the Veteran has RLE radiculopathy, the etiology should have been addressed to include whether it is associated with service-connected back disability. The opinion reflects that, because the Veteran's symptoms are likely due to radiculopathy, which "is outside the scope of the exam request," his symptoms are "less likely than not proximately due to or the result of the veteran's traumatic arthritis of lumbar spine." The essential rationale is simply not discernable from that statement. Second, the February 2020 VA examination and opinion does not respond to the Board's question as to whether the Veteran's RLE disability was aggravated beyond its natural progression by service-connected low back disability. See Stegall, supra. The examiner did not address causation and aggravation elements of the secondary service connection, which are independent concepts. See Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018) (an examiner must provide a rationale that deals with causation and aggravation as independent concepts). It is noted that, while the available medical evidence does not show a clear diagnosis associated with the Veteran's RLE symptoms, pain with functional impairment may be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis). Lastly, remand is necessary, because the Veteran has not been notified that his private treatment records could not be obtained. 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b), (c)(1); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). In December 2019, the Veteran submitted two VA 21-4142 Authorization for Release of Information for Highland Family Chiropractic. See VA 21-4142 Authorization for Release of Information (December 2019). While VA attempted to contact this provider, no additional private treatment records have been obtained. The Board notes that the Veteran was not notified of the RO's inability to obtain the identified private treatment records from Highland Family Chiropractic, for whom the Veteran submitted VA Forms 21-4142s, Authorization for Release of Information. The December 2019 Report of General Information indicates that treatment at Highland Family Chiropractic was confirmed, but the provider did not have the Veteran's records on file. However, VA has not notified he Veteran of any evidence that could not be obtained and his opportunity to submit it. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) (VA has a heightened duty to assist the appellant in developing his claims). On remand, the Veteran should be informed that he should submit any medical treatment records in his possession, and that his December 2019 VA Forms 21-4142 and VA 21-4142a have expired and can no longer be used to obtain his private treatment records. He should be advised that in order for VA to obtain any additional records he must submit new VA Forms 21-4142 and 21-4142a. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his RLE disability, including Highland Family Chiropractic. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. If any records cannot be obtained, provide the Veteran with a proper notice that meets the requirements under 38 U.S.C. § 5103(A)(b)(2) and 38 C.F.R. § 3.159(e), and gives the Veteran opportunity to obtain and submit these records himself. 2. Obtain the Veteran's VA treatment records for the period from November 2019 to the Present. 3. Thereafter, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any neck and BUE disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on file review and interview of the Veteran, detail the Veteran's reported neck and upper extremity symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. The examiner must opine on: (a.) Whether any neck disability and/or BUE disability is at least as likely as not related to an in-service injury, event, or disease, including an October 1971 in-service event of removing an external fuel tank wing (excessively heavy) that contained 200 gallons of fuel. (b.) For arthritis of the neck, whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) Indicate whether the Veteran's reports about his symptoms align with how the currently diagnosed disability are known to develop or are his reports generally inconsistent with medical knowledge or implausible. The opinion should 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). The opinion, among other things, should include a discussion of the Veteran's statements and testimony to include his testimony that he had pain of the entire spine at the time of the tank lifting event where he injury his back in service, and his documented medical history during and since service. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): If any history of injury, onset of symptoms, progression of symptoms, etc., is rejected by the examiner then the examiner must provide a full explanation for such (e.g. symptoms do not align with how the currently diagnosed disability is known to develop, explaining why; or the reported in-service injury and/or symptoms is generally inconsistent with medical knowledge or implausible, explaining why.). 4. Schedule the Veteran for an examination by an appropriate clinician(s) to determine the nature and etiology of any RUE disability. The report of the examination should consider the Veteran's medical history, his military duties, his documented clinical history and the October 1971 in-service injury. Pain that causes functional impairment is a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Provide an opinion on the following: Direct Service Connection (a) Whether it is at least as likely as not that any RLE disability (1) had its onset in service or (2) is related to an in-service injury, event, or disease, including an October 1971 in-service event of removing an external fuel tank wing (excessively heavy) that contained 200 gallons of fuel. (b) Indicate whether the Veteran's reports about his RLE symptoms align with how the currently diagnosed disability are known to develop or are his reports generally inconsistent with medical knowledge or implausible. Secondary Service Connection (c) Whether it is at least as likely as not that any RLE disability is (1) proximately due to service-connected low back disability, or (2) aggravated beyond its natural progression by service-connected low back disability. The clinician must provide a rationale that deals with causation and aggravation as independent concepts. The opinion should 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 (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of literature supporting causation or aggravation without discussing those facts specific to this Veteran. NOTE (3): If any history of injury, onset of symptoms, progression of symptoms, etc., is rejected by the examiner then the examiner must provide a full explanation for such (e.g. symptoms do not align with how the currently diagnosed disability is known to develop, explaining why; or the reported in-service injury and/or symptoms is generally inconsistent with medical knowledge or implausible, explaining why.). 5. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The 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; 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, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (CONTINUED ON NEXT PAGE) 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.