Citation Nr: 22013174 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 17-67 104 DATE: March 8, 2022 REMANDED Entitlement to service connection for a neck disorder, to include as secondary to service-connected thoracolumbar spine disability, is remanded. Entitlement to service connection for a left shoulder disorder, to include as secondary to service-connected thoracolumbar spine disability, is remanded. Entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the thoracolumbar spine with spinal stenosis status post left hemilaminectomy with medial facetectomy and foraminotomy (previously rated as lumbosacral strain) prior to February 6, 2020 (excluding the period of temporary total evaluation from February 4, 2019, to March 31, 2019), is remanded. Entitlement to an evaluation in excess of 40 percent for degenerative arthritis of the thoracolumbar spine with spinal stenosis status post left hemilaminectomy with medial facetectomy and foraminotomy (previously rated as lumbosacral strain) on or after February 6, 2020, is remanded. REASONS FOR REMAND The Veteran served in the Oklahoma Air National Guard and served on active duty from October 1961 to August 1962 (activated for federalized service). This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by the Department of Veterans Affairs (VA). A hearing was held before the undersigned Veterans Law Judge in April 2019. A transcript of the hearing is of record. The Board remanded the case for further development in June 2019. While the case was in remand status, the agency of original jurisdiction (AOJ) granted a higher evaluation for the thoracolumbar spine disability in an August 2020 rating decision, recharacterizing it to reflect the post-surgical status. Because the 40 percent evaluation for the thoracolumbar spine disability does not represent the highest possible benefit, the issue remain in appellate status as stated above. AB v. Brown, 6 Vet. App. 35 (1993). In the August 2020 rating decision, the AOJ also granted service connection for bilateral hearing loss, an issue that was originally part of this appeal; granted a temporary total evaluation and special monthly compensation at the housebound rate for the Veteran's thoracolumbar spine disability surgery requiring convalescence for the time period outlined above; granted a higher evaluation for the service-connected left lower extremity sciatic nerve radiculopathy; and granted service connection for a thoracolumbar spine surgical scar. The Veteran did not express disagreement with any aspect of those determinations. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The case has since returned to the Board for appellate review. On review, the Board finds that additional development is necessary prior to final adjudication of the issues on appeal. Specifically, it appears that there may be outstanding non-VA treatment records, as detailed in the directives below. In addition, the Veteran was provided VA examinations in February 2020 in response to the Board's remand for the service connection claims; however, some medical questions remain as to diagnosis and etiology. Regarding the neck claim, the VA examiner indicated that contemporaneous x-rays were not clinically indicated for the examination. Nevertheless, she also indicated that the Veteran clearly had degenerative changes, but she was unable to definitively confirm a neck diagnosis other than pain because there were no imaging reports in the claims file to support a degenerative arthritis diagnosis. The examiner then provided diagnoses of a cervical strain on a separate part of the examination report, noted a long history of osteopenia that had progressed to severe osteoporosis based on review of the claims file and current examination findings, and determined that the Veteran's neck problems (noted to be degenerative arthritis) were associated with his age, osteoporosis, and genetic factors. The examiner also did not provide a clear etiology opinion on the osteoporosis or provide a complete opinion for secondary service connection. Based on the foregoing, the Board finds that a new VA examination is needed. Regarding the left shoulder claim, the examiner provided diagnoses of degenerative arthritis (based on a 2008 x-ray report), shoulder impingement syndrome, and a long history of osteopenia that had progressed to severe osteoporosis, relating the shoulder arthritis to post-service factors, including the Veteran's age and injuries, as well as his osteoporosis and genetic factors. The examiner did not provide a clear etiology opinion for the remaining diagnoses or provide a complete opinion for secondary service connection. Based on the foregoing, the Board finds that an additional VA medical opinion is needed. The case is REMANDED for the following actions: 1. The AOJ should afford the Veteran another opportunity to submit a completed authorization form for treatment at Tulsa Bone & Joint with Dr. D.K. It is noted that the VA Private Medical Records Retrieval Center (PMRRC) attempted to obtain these records in response to the prior remand, receiving a negative result in December 2019 that appears to be based on a search for the date that the Veteran provided on the authorization form (as the beginning date of treatment), rather than a date range. A report of contact from that same month shows the PMRRC contacted the facility to attempt to request an exception and a return call. Given that the request was made late in the day and then closed out that same day, the Veteran should be provided another opportunity to submit or request that VA attempt to obtain these records to afford him all due consideration. The AOJ should also secure any outstanding VA treatment records. 2. After completing the above development, the AOJ should schedule the Veteran for a VA examination to determine the nature and etiology of any current neck disorder that may be present. Any studies, tests, and evaluations deemed necessary by the examiner should be performed, including contemporaneous imaging studies. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current neck disorders. For each neck diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise related to the Veteran's military service, including any injury or symptomatology therein. The examiner should also state whether it is at least as likely as not that the disorder was either caused by or aggravated by the Veteran's service-connected thoracolumbar spine disability, including the Veteran's contentions as to his posture outlined below. The Veteran has contended that his neck problems began after the documented in-service injury for which his thoracolumbar spine is service-connected and that the problems could also be secondary to that service-connected disability because his posture has been affected by it. See, e.g., April 2019 Bd. Hrg. Tr. at 13-20 and April 2017 written statement with claim; see also, e.g., February 2020 VA examination report (more current report as to onset). The service treatment records show that the Veteran sustained an in-service back injury in October 1961 playing intramural flag football for which he received treatment. See January 1963 and June 1963 claims file service treatment record entries. He was provided VA examinations in October 1962, February 1963, and January 1968 as part of adjudications for his service-connected thoracolumbar spine disability. The 1962 and 1968 examinations are general medical examinations, and the latter contains a cervical spine x-ray report. The 1963 examination is an orthopedic examination that notes issues with the Veteran's posture. The Veteran also submitted a copy of a December 1974 work physical in October 2019. Regarding the neck, the more recent post-service evidence shows complaints of pain with suspected and actual diagnoses in the February 2020 VA examination report. See, e.g., VA treatment records from May 2010 and May 2014. In providing this opinion, the examiner should discuss medically known or theoretical causes of any currently diagnosed disorder and describe how such a disorder generally presents or develops in most cases, in determining the likelihood that the current disorder is related to in-service events as opposed to another cause. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the above development, the AOJ should refer the Veteran's claims file to a VA examiner for a clarifying opinion as to the nature and etiology of any current left shoulder disorder that may be present. An additional physical examination of the Veteran should only be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements, as well as the February 2020 VA examination report. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current left shoulder disorders. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise related to the Veteran's military service, including any injury or symptomatology therein. The examiner should also state whether it is at least as likely as not that the disorder was either caused by or aggravated by the Veteran's service-connected thoracolumbar spine disability, including the Veteran's contentions as to his posture outlined below. The Veteran has contended that his left shoulder problems began after the documented in-service injury for which his thoracolumbar spine is service-connected and that the problems could also be secondary to that service-connected disability because his posture has been affected by it. See, e.g., April 2019 Bd. Hrg. Tr. at 13-20 and April 2017 written statement with claim; see also, e.g., February 2020 VA examination reports (more current report as to onset). The service treatment records show that the Veteran sustained an in-service back injury in October 1961 playing intramural flag football for which he received treatment. See January 1963 and June 1963 claims file service treatment record entries. He was provided VA examinations in October 1962, February 1963, and January 1968 as part of adjudications for his service-connected thoracolumbar spine disability. The 1962 and 1968 examinations are general medical examinations, and the latter contains a cervical spine x-ray report. The 1963 examination is an orthopedic examination that notes issues with the Veteran's posture. The Veteran also submitted a copy of a December 1974 work physical in October 2019. Regarding the left shoulder, the more recent post-service evidence shows that the Veteran has a history of an injury to the left shoulder in the 1970s from a motorcycle accident in which he had a shoulder dislocation with a closed reduction. See VA treatment records from February 2005 and April 2008 (orthopedic surgery consultation). In the April 2008 consultation, the VA treatment provider noted that the Veteran also had what sounded like impingement type problems 20+ years ago where he had an injection that resolved the pain. See also, e.g., VA treatment records from January 2012 (x-ray report showing significant degenerative joint disease about the left shoulder joint) and May 2012 (additional orthopedic surgery consultation with bilateral shoulder diagnoses); February 2020 VA examination report (current diagnoses). In providing this opinion, the examiner should discuss medically known or theoretical causes of any currently diagnosed disorder and describe how such a disorder generally presents or develops in most cases, in determining the likelihood that the current disorder is related to in-service events as opposed to another cause. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The AOJ should review the responses and reports received to ensure compliance with this remand and implement corrective procedures if needed. 5. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Postek, 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.