Citation Nr: 21055788 Decision Date: 09/09/21 Archive Date: 09/09/21 DOCKET NO. 15-37 965A DATE: SEPTEMBER 9, 2021 REMANDED Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for cervical radiculopathy of the bilateral upper extremities is remanded. Entitlement to service connection for toxic nephropathy is remanded. REASONS FOR REMAND The Veteran served in the Army National Guard on active duty for training from September 5, 2006 to March 20, 2007. The Department of Veterans Affairs (VA) is grateful for his service. The appealed claims were previously remanded by the Board in August 2020. They now return for further review. The Board has herein recharacterized the cervical disability claim to include sprain and arthritis based on current VA and private examination findings, as discussed below. The appeal arose from a VA Regional Office (RO) decision in July 2014 based on the Veteran's July 2013 claim including to reopen a claim for service connection for a neck condition. Hence, the claim was not limited to "spinal stenosis," as previously characterized. In April 2021, the Veteran submitted a notice of disagreement with denials of service connection for pes planus with plantar fasciitis and sleep apnea. Also in April 2021, the Veteran submitted a separate notice of disagreement with the rating assigned for service-connected hypertension. 1. Entitlement to service connection for cervical spine disability is remanded In a prior application for disability benefits submitted in May 2008, the Veteran reported that he began having neck pain while in training at Ft. Jackson, South Carolina, on November 3, 2006, and that he has had neck pain since that date. A service treatment record which the Veteran submitted dated November 3, 2006 documented the Veteran's complaint of sore throat and neck tenderness for three days with associated difficulty eating because of painful swallowing. Objectively, the neck exhibited exudate and redness. Warm salt-water gargles were prescribed. A document submitted into the record in July 2008 purported to be a follow-up treatment dated November 9, 2006, which informs of the Veteran experiencing neck pain for five days. The document provides the additional detail that the Veteran reported suffering a neck injury during physical training with resulting neck tenderness. However, the VA Regional Office (RO) carefully reviewed this document and concluded that this was originally the November 3, 2006 treatment record which had been altered. The Board's review of the document confirms that multiple hand-written entries into the November 9 document are identical to those of the document dated November 3, 2006, establishing that the November 9 document is in fact an altered copy of the November 3, 2006 document. The RO reviewed the original service records, and these did not contain either the November 3 or the November 9 documents. The RO requested from the Veteran provide an original of the November 9 record, but the Veteran did not provide one. The RO, accordingly, concluded that there was no documentary support for an injury to the neck in service. The Veteran was afforded a VA examination in November 2008 addressing claimed neck strain. The examiner found that there was no documentary evidence of injury to the neck in service to support the claim. The VA examiner provided an opinion against a link between current neck disability and service. Based in part on the absence of valid corroborating evidence of neck injury in service, the RO in March 2009 denied service connection for a neck condition. In September 2009, the Veteran requested that the denial of service connection for a neck condition be reconsidered. In support, the Veteran submitted a DA Form 5181, Screening Note for Acute Medical Care, dated December 6, 2006, which indicated treatment for assessed neck strain. By an October 2009 decision, the RO again denied service connection for a neck condition, including based on the conclusion that the submitted record dated December 6, 2006, while an original record (not a photocopy), was of an "unclear" source, in part because the original service treatment records obtained from the service department did not include this December 6, 2006 record, or the November 3, 2006 and November 9, 2006 records. In a February 2010 Statement of the Case, a Decision Review Officer (DRO) at the RO concluded that the December 6, 2006 document "does not appear to be a true service treatment record." The Board has reviewed the December 6, 2006 document, and notes that its language and style is not typical of a medical record, based on general Board knowledge gleaned from review of thousands of medical records. The main text portion of the document states, "Soldier has a neck strain above collarbone and needs to be treated w/ heat and ice[.] Gave soldier naproxen to help w/pain." Notably, the text includes no standard medical acronyms, uses complete or nearly complete sentences, and uses the term "collarbone," which is not a medical term and hence is generally not used in medical records. "Needs to be treated" and "Gave soldier naproxen" are also not phrasings that a medical professional would generally use in a medical record, as they use passive phrasings rather than a direct, clear instruction for care with use of medical terms and active voice (e.g., "tx naproxen 200mg" or "Rx naproxen prn"). None of this is characteristic of medical records, but rather appears to be a layperson's attempt to mimic medical instructions. The handwriting on the document contains carefully spaced words, rather than the hurried script of medical professionals. Based on these characteristics of the document and the Veteran's prior submission of an altered copy of a November 3, 2006 record as purporting to be a November 9, 2006 record in support of his claim, the Board concludes that the December 6, 2006 document is also not a valid service treatment record, but rather a fabrication written on an obtained medical record form or on a copy of such a form. Based on the Veteran's submission of multiple altered or fabricated documents in furtherance of his claims, the Board concludes that the Veteran's credibility for statements of history in furtherance of his claims is entirely impeached, so that absent independent corroboration his statements in furtherance of his claims are determined to be not credible. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). (In February 2012, the Veteran submitted a claim for service connection for difficulty swallowing which he contended occurred in November 2006. He reported that he had current difficulty swallowing food and drink. In May 2012, the Veteran again submitted the records dated November 3, 2006 and November 9, 2006 that he had previously submitted in support of a neck disability claim. Thus, the Veteran recycled these submitted records to support multiple claims. By an August 2013 decision, the RO denied service connection for dysphagia.) In July 2013, the Veteran submitted, among other claims, a request to reopen a claim for service connection for a neck condition. VA treatment records include August 2008 x-rays of the cervical spine, with anterior/posterior, lateral, oblique, and odontoid views. The x-rays were negative for pathology, with "no appreciable osseous or adjacent soft tissue abnormality." The report added, "Disk spaces and neural foramina are normal." Added to the record in October 2013 is a September 2013 medical evaluation record by C.N.B, M.D. The physician relied on the above-noted December 6, 2006 record as well as on the supposition that the Veteran "injured his neck [in] long marches with 80-100 pound packs" with "neck pain ever since." The physician also submitted an article regarding cumulative workloads to support the physician's opinion that the Veteran's current cervical disability was "due to service." The physician failed to consider the question of validity of the December 6, 2006 record on which his opinion relied. In a submitted March 2021 private medical letter, J.W.E, M.D., informs that he examined the Veteran in March 2021 for an evaluation. The Veteran provided a history of beginning to experience neck pain with spasms in service from physical training and activities involving heavy lifting and carrying as well as travel on uneven terrain. The Veteran reported that his condition became worse and he woke in the morning with stiffness, and he then went to the medic and received Motrin. The Veteran added that following service his condition became worse with daily activities. The physician diagnosed cervical strain, degenerative arthritis of the cervical spine, intervertebral disc syndrome of the cervical spine, and cervical radiculopathy of the upper extremities, linking all of these conditions to service. The physician explained that strain to the muscles, tendons, and ligaments led to abnormal wear and tear of the cervical spine, resulting in narrowing of disc space with spur formation, and that bony spurs caused pinched nerves resulting in cervical radiculopathy. Notably, the physician J.W.E. failed to address the comparatively short duration of the Veteran's period of active service and the possibility that activities following service caused or contributed to current cervical disability. Additionally, the Veteran was noted to be 5 feet 10 inches tall and weigh 284 pounds, yet the examiner failed to consider weight as a possible causal factor of the Veteran's cervical pathologies. (As noted below, the April 2021 VA examiner identified risk factors of osteoarthritis including obesity.) Based on this physician's failure to address these other potential causal factors of post-service activities and obesity, and the physician's failure to consider the credibility of the Veteran's self-reported history, the Board does not find these private opinions to adequately support the claims. A medical opinion is inadequate if it relies on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran underwent multiple VA medical examinations by a clinician in April 2021 in furtherance of his claim. The clinician in one of these examination reports, to address claimed cervical spine stenosis, noted that the Veteran had symptoms consistent with thoracic outlet syndrome but that the Veteran had not undergone an MRI. The examiner found that a diagnosis of cervical stenosis could not be supported based on existing evidence, with recent x-rays not reflecting stenosis. Other evaluations of record also fail to reflect that an MRI had been obtained to help ascertain whether cervical stenosis was present. Accordingly, remand is warranted for an MRI or other appropriate scans to ascertain whether or not cervical stenosis is present. In other April 2021 VA examinations, the same examining clinician agreed with the private opinion of J.W.E. that the Veteran's activities in service including lifting heavy items could have strained muscles, tendons, and various structures of vertebra; and could have resulted in narrowing disc spaces with spur formation, and spur formation in turn could result in cervical pinched nerves resulting in cervical radiculopathy. However, the VA examiner noted that x-rays in December 2018 showed disc spaces well-preserved and no loss of disc height, and thus these x-rays did not support presence of arthritis. The VA examiner concluded that she could not explain the cervical radiculopathy signs and symptoms, but the examiner also provided a positive nexus opinion between the Veteran's activities in service and cervical strain. Thus, the Board finds that this positive nexus opinion was not based on accurate facts. The April 2021 VA examiner relied on the Veteran's self-reported history of strenuous activities in service, and attending school full time and occasionally having a job prior to seeking medical care at VA for his cervical disability without reported strenuous physical activity following service. This post-service history is effectively contradicted by the Veteran's statements at a VA examination in December 2020 addressing claimed depression, when the Veteran reported that he worked at an aluminum factory for six years following service, ceasing that work when the factory closed. Because this statement regarding factory work was not made in furtherance of a claim, it is considered of greater credibility since it was not motivated by secondary gain. Caluza v. Brown, 7 Vet. App. at 511, 512. The Veteran did not then report that this work was only part-time. Some effort should be made to ascertain the nature of this post-service work, and absent independent corroboration to the contrary, it should be considered to have involved strenuous activity. Because the VA examinations to date addressing cervical spine disability and radiculopathy have relied on the Veteran's non-credible self-reported history made in furtherance of his claims and have not considered the Veteran's history of work at an aluminum factory following service, the opinions are not based on an accurate history and hence are not considered probative. A medical opinion based on an inaccurate factual premise is not probative. Reonal, 5 Vet. App. at 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (per curiam). A new examination not relying on uncorroborated self-reported history while considering this post-service history is accordingly warranted. The April 2021 examiner did review medical literature addressing the following risk factors of osteoarthritis: previous damage to the joint, bridging muscle weakness, obesity, overuse, increased age, genetics, and nutritional factors. She cited "Harrison's Principals of Internal Medicine, 17th Edition, Risk Factors of OA." Upon remand examination, the examiner should consider the duration of the Veteran's service, obesity, the Veteran's history of post-service work at an aluminum factory for six years following service, and the likely role of any indicated risk factors in the Veteran's development of any neck disability present during the claim period. The examiner is also to be advised of the absence of valid treatment records from service documenting a neck injury or neck symptoms or disability, with submitted records from November 3, 2006, November 9, 2006, and December 6, 2006 are not accepted as valid service treatment records. Thus, the examiner is to be advised that there are no valid service records documenting a neck injury, neck symptoms, or cervical pathology in service. 2. Entitlement to service connection for cervical radiculopathy of the bilateral upper extremities is remanded The Veteran's claim for service connection for cervical radiculopathy into the upper extremities is inextricably intertwined with the claim for service connection for cervical spine pathology, and hence must also be remanded. The Court has held that a claim which is inextricably intertwined with another claim which remains undecided and pending before the VA must be adjudicated prior to a final order on the pending claim, so as to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Regarding neuropathy in the upper extremities, the Board notes that the Veteran was afforded a peripheral nerves examination in December 2020 and the examiner diagnosed pathology of the hands as enervated by the median nerves. The Veteran reported having numbness and tingling of the hands and feet. The question thus presented is whether such pathology of the hands is due to cervical radiculopathy or due to other causes. An April 2021 VA examination found that a positive nexus opinion could not be provided for cervical radiculopathy because cervical stenosis could not be supported by the current record, though appropriate scans such as MRI had not yet been performed. Accordingly, appropriate scans for assessing cervical stenosis should be performed upon remand. 3. Entitlement to service connection for toxic nephropathy is remanded The Veteran has claimed service connection for toxic nephropathy as secondary to medication, including specifically ibuprofen, taken for treatment of claimed cervical spine disability. Hence, this claim is also inextricably intertwined with the cervical disability claim and must be remanded. Id. The matters are REMANDED for the following actions: 1. With the Veteran's assistance, as appropriate, some effort should be made to ascertain the nature of the Veteran's work for six years in an aluminum factory after active service. The Veteran should be informed that independent corroboration should be provided and not merely a self-report of the nature of the work. Inform the Veteran that absent independent corroboration to the contrary, this work will be considered to have been both full-time and involving strenuous activities. 2. Schedule the Veteran for an examination to determine the nature and etiology of any cervical disability and any neuropathy (to include any radiculopathy) in the upper extremities. The examiner must be qualified to address the nature and etiology of cervical pathology and upper extremity neuropathy. The examiner should carefully review the record. Any necessary tests or studies should be conducted, and relevant findings should be reported in detail in the examination report. An MRI or other appropriate scans or tests should be obtained to ascertain whether cervical stenosis and cervical radiculopathy are supported by objective evidence. Records review and/or medical evaluation should also be undertaken to ascertain whether other causes or causal factors are present for neuropathy or radiculopathy in the upper extremities and in particular in the hands. The examiner must be advised that records dated November 3, 2006, November 9, 2006, and December 6, 2006, which the Veteran has submitted in support of cervical disability claims, should not be considered valid service records, as they are determined to have been fabricated or altered. Hence, these records should not be relied upon to support a medical opinion. Thus, the examiner is to be advised that there are no valid service records documenting a neck injury, neck symptoms, or cervical pathology in service. The examiner is also advised that the Veteran's self-reported history of neck injury, symptoms, or disability in service, or of symptoms or disability continuing from service in support of his claim have been inconsistent. The examiner must document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. In this regard, as already stated, the Veteran's statements of history of disability have been inconsistent. The examiner should address the September 2013 private medical evaluation by C.N.B., M.D., added to the claims file in October 2013, as well as the March 2021 private medical evaluation by J.W.E., M.D., with respect to diagnoses of cervical disability and radiculopathy with opinions causally linking these disabilities to injury or activities in service. The examiner should note that the opinion of C.N.B. relied in part on the December 6, 2006 document that is not considered a valid service record. The examiner should note that opinions of both C.N.B. and J.W.E. relied on the Veteran's self-reported history of injury in service and/or cervical pain since service, which self-reports are considered not credible including based on the Veteran's submission of fabricated or altered documents in support of his claims. For each identified cervical pathology (potentially to include cervical strain, cervical degenerative disc disease or intervertebral disc syndrome, and arthritis) present during the claim period, the examiner should separately opine whether it is at least as likely as not (50 percent or greater probability) that the claimed disability developed in service or is otherwise causally related to service. For any arthritis and any degenerative disc disease, the examiner should also separately opine whether it is at least as likely as not (50 percent or greater probability) that the disability was present to a disabling degree within the first post-service year. For these opinions, the examiner should consider the Veteran's activities during his period of Active Duty for Training (ACDUTRA) from September 2006 to March 2007, as compared with his activities including work at an aluminum factory for six years following service. If independent corroborating evidence to the contrary has not been presented, the work at the aluminum factory should be considered to have been full time and involving strenuous physical activity. The examiner should also consider potential causal factors for cervical pathology including previous damage to the joint, bridging muscle weakness, obesity, overuse, increased age, genetics, and nutritional factors, as noted by the April 2021 VA examiner, citing "Harrison's Principals of Internal Medicine, 17th Edition, Risk Factors of OA." Also, for each identified radiculopathy or neuropathy in the upper extremities present during the claim period, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the radiculopathy or neuropathy was caused by the cervical pathology, and whether it is at least as likely as not (50 percent or greater probability) that the radiculopathy or neuropathy was aggravated (worsened) by the cervical pathology. Separate opinions should be provided for causation and aggravation. Aggravation does not require that there be "permanent" worsening of the nonservice connected disability. Complete explanations supported by facts of record and medical knowledge should be provided for each opinion expressed. 3. If the cervical spine examiner from instruction 1, above, finds that it is at least as likely as not (50 percent or greater probability) that a cervical spine pathology developed in service or is causally related to service, then an examination should be conducted by a clinician qualified to address the nature and etiology of any nephropathy present during the claim period. The examiner should carefully review the record. Any necessary tests or studies should be conducted, and relevant findings should be reported in detail in the examination report. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. In this regard, the examiner should note that the Veteran's statements of history of disability have been inconsistent. For any nephropathy present during the claim period, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the nephropathy was caused by medication taken for cervical pathology, and whether it is at least as likely as not (50 percent or greater probability) that the nephropathy was aggravated (worsened) by medication taken for the cervical pathology. Separate opinions should be provided for causation and aggravation. Aggravation does not require that there be "permanent" worsening of the nonservice connected disability. (Continued on the next page) Complete explanations supported by facts of record and medical knowledge should be provided for each opinion expressed. 4. Thereafter, readjudicate the appealed claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.