Citation Nr: 21040130 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-01 469 DATE: July 2, 2021 REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a thoracic spine disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1970 to June 1993. The Veteran testified before the Board at an August 2020 hearing. A transcript of the hearing has been associated with the Veteran's claims file. 1. Entitlement to service connection for a cervical spine disorder and a thoracic spine disorder are remanded. The Veteran claims entitlement to service connection for a cervical spine disorder and a thoracic spine disorder as directly related to his military service. Specifically, he attributes his current cervical and thoracic spine problems to an October 1972 in-service injury when he was struck in the head by the breechblock housing of a three-inch 50 caliber gun mount. See August 2017 Statement; August 2020 Hearing Transcript, pp. 5-6. The Veteran claims that he developed pain in his back and neck, and that his symptoms continually progressed since his military service. With regard to his thoracic spine problems, the Veteran also claims that such is secondary to his service-connected lumbar spine disability as a result of overuse. See id. at pp. 13-14. In support of his claims, the Veteran has submitted a number of statements from his fellow service members who recalled the Veteran's reports of back and neck pain throughout his military service. For example, an August 2015 statement from B.B. noted that he served with the Veteran from February 1986 through June 1989, and that he frequently experienced a stiff neck and back pain, but that he would continue on with his duties. Another August 2015 statement from D.P. noted that he had served with the Veteran from June 1979 to August 1980, and he struggled with a stiff neck and muscle tightness in the neck. Another statement from K.O. noted that the Veteran reported frequent neck pain from December 1973 to February 1975. The Veteran was afforded a VA examination in July 2015, and he was diagnosed with cervical arthritis. After noting the Veteran's in-service injury when he was hit in the head by a recoiled gun, as well as his reports of a stiff and painful neck since then, the examiner ultimately opined that his cervical arthritis was less likely than not due to his in-service injury. The examiner noted that the Veteran was first seen for cervical pain in May 2015, and one would expect more reports of neck pain throughout the years if the October 1972 injury was the cause of his current problems. The examiner concluded that, although not impossible, it was improbable to link his current cervical spine disorder to his October 1972 injury. The July 2015 opinion appears to be based solely on the lack of objective evidence showing chronic symptomatology during and following service, and does not reflect consideration of the lay statements concerning the onset and continuity of the Veteran's cervical spine symptoms. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). Notably, the lay statements from the Veteran's fellow service members conserving his symptoms during service were added to the claims file after the July 2015 VA examination was performed; thus, the examiner did not have an opportunity to review them in connection with the opinion provided. In January 2017, the Veteran submitted a private treatment record from Dr. J.L., who noted that he had been seen on several occasions in the office because of persistent axial neck and back pain, and that he was injured while in the service. Dr. J.L. noted that the Veteran had a multitude of findings throughout his spinal axis which "can be related" to his initial injury. Later, Dr. J.L. stated that, based on the information provided to him, the injury resulting in the present radiographic findings occurred during the Veteran's military service. The Veteran also submitted an August 2017 private treatment record from Dr. J.L., who noted that the Veteran continued to have troubles with cervical and lumbar pain since being injured during service. Dr. J.L. noted that he was working on gun mount and was thrown backwards violently experienced new onset cervical and lumbar pain. Dr. J.L. noted that his activities of daily living had been limited over the last thirty to forty years, and the question has consistently been raised as to whether these findings were related to his in-service injury. Dr. J.L. went on to say that, despite the fact that he could not clearly pinpoint the cause of his compressive deformity and spondylitic changes throughout the spine, there was always the possibility that much of the findings could have resulted from an injury which was not fully diagnosed and evaluated at the time of its occurrence. Dr. J.L.'s January 2017 and August 2017 treatment records are too speculative in nature to resolve the issue before the Board, and are not supported by adequate rationale. Indeed, in both treatment records, Dr. J.L. indicated that the Veteran's current problems "can be related" to his initial injury, and that there was "always the possibility" that his current problems were related to his military service without any further discussion or explanation. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (a generic statement about the possibility of a link is too general and inconclusive); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993), (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship); Morris v. West, 13 Vet. App. 94, 97 (1999) (a diagnosis that the appellant was "possibly" suffering from schizophrenia was deemed speculative). In March 2017, the Veteran underwent another VA examination, and the examiner noted his contention that the ossification of the thoracic spine was related to his October 1972 injury. Ultimately, the examiner concluded that it was less likely than not than the ossification of the thoracic spine was secondary to, or a progression of his service-connected lumbar spine disability because ossification changes suggested evolving ankylosis spondylitis which is a developmental condition not associated with trauma. This opinion is insufficient to adjudicate the claims on appeal as the examiner's rationale appears to only address direct service connection, as opposed to secondary service connection, even though the conclusion addresses secondary service connection. Furthermore, the examiner's rationale fails to reflect consideration of the lay statements of record concerning the onset and continuity of symptoms. The Veteran underwent another VA examination in December 2017, and the examiner noted his diagnoses of multilevel cervical degenerative disc disease and arthritis, as well as diffuse idiopathic skeletal hyperostosis (DISH) with ossification of the posterior longitudinal resulting in multilevel spinal canal stenosis. Ultimately, the examiner opined that the Veteran's claimed spinal disabilities were less likely than not related to his military service. Initially, the examiner noted that the Veteran did not claim that his problems were related to an in-service motor vehicle accident as was indicated by the examination request; instead, the Veteran claimed that it was related to the October 1972 incident. The examiner went on to say that numerous service treatment record between 1972 and 1993 showed no evidence of chronic neck pain, and the examiner concluded that his current neck problems and limitation of motion was sue to his DISH with possible anulosis spondylitis as opposed to the October 1972 incident. Again, the December 2017 VA examination is insufficient to adjudicate Veteran's claim as it fails to reflect consideration of the lay statements of record concerning the onset and continuity of symptoms. When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given that the medical evidence of record fails to address the issues raised, the Board finds that the Veteran should be afforded new VA examinations to address whether his current cervical spine disorder and thoracic spine disorder are directly related to his military service or whether such are secondary to his service-connected lumbar spine disability. 2. Entitlement to service connection for a left ankle disorder, a right ankle disorder, and a right foot disorder are remanded. The Veteran claims entitlement to service connection for bilateral ankle disorders and a right foot disorder as directly related to his military service. Specifically, the Veteran attributes his current bilateral ankle and right foot problems to the wear and tear associated with his military duties, i.e., wearing steel-toed boots and working on hard steel decks throughout his military service. See August 2020 Hearing Transcript, p. 19. During his August 2020 hearing, the Veteran also reported that he sprained his left ankle when stationed in Japan and, although he sought medical treatment, he could not locate the records of treatment. Id. at 20. He also claims that he injured his right ankle when he slipped on a patch of ice and rolled his ankle. He stated that, although he sought treatment, he eventually just treated his right ankle problem by lacing up his combat boots and going back to work. Alternatively, the Veteran also claims that his problems are secondary to his service-connected lumbar spine disability, including the fact that his lumbar spine disability led to his weight gain which, in turn, left to his current bilateral ankle and foot problems. See id. In support of his claims, the Veteran has submitted a number of statements from his fellow service members who recalled his reports of ankle and foot pain throughout his military service. For example, a May 2016 statement from R.H. noted that the Veteran frequently complained of ankle pain and that he used over-the-counter medication to treat his pain. An April 2016 statement from T.N. noted that he reported discomfort in his feet and ankles as a result of working over shoulder hearing, as well as working on steel or concrete decks. Another statement from J.B. noted that the Veteran wore ankle supports with plastic inserts during his military service. The Veteran underwent a VA examination in November 2015, and he was diagnosed with degenerative arthritis in the bilateral ankles. The examiner then noted his in-service treatment for a right ankle sprain in December 1975, as well as his report of a left ankle sprain in 1974. The examiner went on to note that his subsequent service treatment records were silent for any complaints of, or treatment for, ankle problems. Ultimately, the examiner opined that the Veteran's right ankle disorder was less likely than not related to his in-service treatment for a right ankle sprain because there was no evidence of chronic sequela in the ensuing years. Instead, the examiner attributed the Veteran's right ankle disorder to his body habitus. With regard to direct service connection, the November 2015 examiner's rationale fails to reflect consideration of the lay statements of record concerning the onset and continuity of symptoms. With regard to the Veteran's claims for service connection on a secondary basis, although obesity itself is not considered a disability for VA purposes, when obesity has been caused by a service-connected condition, and subsequently causes another disability, obesity may be considered an "intermediate step" for establishing service connection on a secondary basis. See VAOPGCPREC 1-2017 (January 6, 2017). Recently, the United States Court of Appeals for Veterans Claims issued a decision holding that when VA addresses the question of obesity as an intermediate factor, it must evaluate whether a service-connected disability caused or aggravated the Veteran's obesity, just as it would when analyzing secondary service connection under 38 C.F.R. § 3.310. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). On remand, the Veteran should be given the opportunity to submit or identify any outstanding evidence pertinent to his claims on appeal. The matters are REMANDED for the following action: 1. Give the Veteran another opportunity to submit or identify any outstanding pertinent evidence that has not already been associated with the claims file. The agency of original jurisdiction should then attempt to obtain the identified evidence if he provides the appropriate authorization. 2. The Veteran should then be afforded a VA examination to determine whether his currently-diagnosed cervical spine disorder and/or thoracic spine disorder had its onset during, or is otherwise related to, his military service; or whether such are secondary to his service-connected lumbar spine disability. The record and a copy of this Remand must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of his claimed disabilities. Following a review of the entire record, the examiner should address the following questions: a) Please clarify all disabilities related to the Veteran's cervical spine and thoracic spine. b) For each identified disability, is it at least as likely as not (i.e., approximately a 50 percent probability) that such had its onset during, or is otherwise related to, his active duty service, to include the October 1972 in-service injury when he was struck in the head by the breechblock housing of a three-inch 50 caliber gun mount? In offering any opinion, the examiner must also consider the full record, to include the lay statements concerning the onset and continuity of symptomatology during service following the 1972 injury. For example, an August 2015 statement from B.B. noted that he served with the Veteran from February 1986 through June 1989, and that he frequently experienced a stiff neck and back pain, but that he would continue on with his duties. Another August 2015 statement from D.P. noted that he had served with the Veteran from June 1979 to August 1980, and he struggled with a stiff neck and muscle tightness in the neck. Another statement from K.O. noted that the Veteran reported frequent neck pain from December 1973 to February 1975. The Board notes that the Veteran's service-connected lumbar spine disability has been attributed to the October 1972 in-service injury. c) Notwithstanding the answer to the question above, is it at least as likely as not (i.e., approximately a 50 percent probability) that any cervical or thoracic spine disorder was caused or aggravated by his service-connected lumbar spine disability? In this regard, the Veteran claims that such is secondary to his service-connected lumbar spine disability as a result of overuse. See id. at pp. 13-14. A clearly-stated rationale for any opinion must be provided, and must not be based solely upon the absence of chronic treatment in the Veteran's service treatment records. 3. The Veteran should be afforded a VA examination to determine whether his currently-diagnosed bilateral ankle disorders and/or right foot disorder had its onset during, or is otherwise related to, his military service; or whether such are secondary to his service-connected lumbar spine disability. The record and a copy of this Remand must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of his claimed disabilities. Following a review of the entire record, the examiner should address the following questions: a) Please clarify all disabilities related to the Veteran's bilateral ankles and right foot. b) For each identified disability, is it at least as likely as not (i.e., approximately 50 percent probability) that such had its onset during, or is otherwise related to, his active duty service? The examiner should note that the Veteran attributes his current bilateral ankle and right foot problems to the wear and tear associated with his military duties, i.e., wearing steel-toed boots and working on hard steel decks throughout his military service. See August 2020 Hearing Transcript, p. 19. Furthermore, during his August 2020 hearing, the Veteran also reported that he sprained his left ankle when stationed in Japan in 1974 and, although he sought medical treatment, he could not locate the records of treatment. Id. at 20. He also claims that he injured his right ankle when he slipped on a patched of ice and rolled his ankle in 1975. He stated that, although he sought treatment, he eventually just treated his right ankle problem by lacing up his combat boots and going back to work. The examiner's attention is also drawn to the statements from the Veteran's fellow service members who recalled his reports of ankle and foot pain throughout his military service. For example, a May 2016 statement from R.H. noted that the Veteran frequently complained of ankle pain and that he used over-the-counter medication to treat his pain. An April 2016 statement from T.N. noted that the Veteran reported discomfort in his feet and ankles as a result of working over shoulder hearing, as well as working on steel or concrete decks. Another statement from J.B. noted that the Veteran wore ankle supports with plastic inserts during his military service. In offering any opinion, the examiner must also consider the full record, to include the lay statements concerning the onset and continuity of symptomatology during service. c) Notwithstanding the answer to the question above, is it at least as likely as not (i.e., approximately 50 percent probability) that any bilateral ankle disorder and/or right foot disorder was caused or aggravated by his service-connected lumbar spine disability? Specifically, the examiner should address whether it is at least as likely as not that obesity served as an "intermediate step" between the Veteran's service-connected lumbar spine disability and his bilateral ankle and right foot disorders by answering the following: (i) Is it at least as likely as not that the Veteran's service-connected lumbar spine disability caused the Veteran to become obese or aggravated the Veteran's obesity? (ii) If so, was the obesity that resulted from or was aggravated by the service-connected lumbar spine disability a substantial factor in causing the bilateral ankle and/or right foot disorders? (iii) Would the bilateral ankle and/or right foot disorders not have occurred, but for the obesity caused by or aggravated by the service-connected lumbar spine disability? A clearly-stated rationale for any opinion must be provided, and must not be based solely upon the absence of chronic treatment in the Veteran's service treatment records. 4. Then, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.