Citation Nr: 22013736 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 17-17 540 DATE: March 10, 2022 REMANDED Entitlement to a rating in excess of 40 percent for intervertebral disc syndrome (IVDS) with degenerative disc disease (DDD) of the lumbar spine (low back disability) is remanded. Entitlement to service connection for a disability manifested by chest pain, diagnosed as angina, to include as secondary to a service-connected low back disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from September 1988 to September 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In January 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in June 2021, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In its remand, the Board directed the AOJ to assist the Veteran in obtaining private treatment records from a Dr. F. in Napoleon, Ohio and from Bryan Hospital, and to ask the Veteran to identify and provide a release for relevant records from any other private care providers who might possess additional, relevant records. The Board also directed the AOJ to obtain updated VA treatment records. Later in June 2021, the AOJ sent the Veteran a letter asking her to provide an appropriate release for the identified private treatment records and to identify and provide an appropriate release for any additional private treatment records. In response to the AOJ's request, the Veteran submitted records from Dr. F. and from Bryan Hospital. In July 2021, September 2021, and October 2021, the AOJ obtained updated VA treatment records. The Board finds that there has been at least substantial compliance with the records development directed in the June 2021 remand. See Stegall v. West, 11 Vet. App. 268 (1998). In the remand, the Board further directed the AOJ to afford the Veteran a new VA examination in connection with her claim for an increased rating for her low back disability, and to afford her an initial VA examination in connection with her claim for service connection for a disability manifested by chest pain. While the AOJ afforded the Veteran VA examinations as to both claims in September 2021, neither of the examination reports is fully adequate. As such, further development is necessary. Id. 1. Entitlement to a rating in excess of 40 percent for a low back disability is remanded. In its June 2021 remand, the Board noted that the Veteran had been afforded VA examinations in connection with her claim in October 2012, April 2013, and August 2015. It further noted that, to date, none of the examinations were compliant with the requirements of VA caselaw, and that in addition the Veteran had alleged that her condition had worsened since the time of the most recent VA examination. The Board therefore ordered a new VA examination, specifically instructing the examiner to conduct an examination that satisfied all of the necessary criteria. It also instructed the examiner to specifically indicate whether the Veteran experienced functional loss that was functionally equivalent to ankylosis of the thoracolumbar spine and, if so, whether it was more closely equivalent to favorable or unfavorable ankylosis, and how often such functional impairment occurred. As noted, the Veteran was afforded a new VA examination in connection with her claim in September 2021. The examiner complied with the Board's remand directives regarding satisfying the criteria set out in VA caselaw, and also indicated that the Veteran did not have ankylosis. However, the examiner did not answer the question as to whether the Veteran experienced functional loss that was functionally equivalent to ankylosis of the thoracolumbar spine, as specifically instructed by the Board. Under the circumstances, a remand for an addendum opinion as to that specific question is warranted. Id. Updated records of any VA treatment the Veteran has received should also be procured. Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for a disability manifested by chest pain, diagnosed as angina, to include as secondary to a service-connected low back disability, is remanded. In its June 2021 remand, the Board directed the AOJ to afford the Veteran a VA examination in connection with her claim for service connection for a disability manifested by chest pain. The Board directed the examiner to identify any such disability that had been present since May 2013 (when the Veteran filed her claim for service connection) and to offer etiological opinions as to both direct and secondary service connection. The Board specifically instructed the examiner to consider several relevant pieces of evidence regarding chest pain, including a February 2008 private treatment record; June 2010, February 2011, and January 2012 chest x-rays, January 2013, March 2013, April 2013, and June 2013 VA treatment records; and the Veteran's contention that her chest pain was caused by and/or worsened by her December 2012 back surgery. The Veteran was afforded a VA examination in connection with her claim in September 2021. The examiner diagnosed stable angina, identifying the date of diagnosis as 2013. She noted the Veteran's report that she was hospitalized for chest pain at that time and was diagnosed with pulmonary emboli, and that since then she had continued to have substernal chest pain which occurred every week. In her examination report, the examiner stated that etiology of the chest pain was the pulmonary emboli diagnosis. The examiner offered a negative nexus opinion as to direct service connection, noting that the Veteran's service was from August 1988 to September 1992, and that intermittent chest pain did not occur until 2013. In a separate opinion, she offered another negative nexus opinion as to direct service connection, reasoning that the Veteran's chest pain was of unknown origin and that cardiac involvement was ruled out. She noted the previous pulmonary emboli in 2013, adding that while chest pain initially presented itself in 2013, around the time of the Veteran's back surgery, a diagnosis of pulmonary embolism was given and would explain the cause of the experienced chest pain. She then stated that there was no continued correlation to establish a known cause of origin. In yet another opinion, the examiner offered a further negative nexus opinion as to direct service connection, this time outlining the Veteran's complete history and citing to the records outlined by the Board in its June 2021 remand, as well as records regarding the Veteran's low back disability. She then noted that the Veteran was negative for pulmonary emboli at the time of her examination and that a chest x-ray showed no abnormalities, but that she continued to have chest pain and was prescribed medication. The examiner then stated that while intermittent chest pain persisted, a direct correlation "between the two" could not be established. The examiner also offered a negative opinion as to secondary service connection, noting that intermittent chest pain started in 2013 and that the initial diagnosis of lumbar radiculopathy was given in 1993, followed by a diagnosis of DDD in 1996, and arthritis of the spine in 2012. She added that the Veteran was diagnosed with pulmonary embolism in 2013 and intermittent chest pain was not as likely as not aggravated by the progression of constant back pain. In a separate opinion, she offered a further negative nexus opinion as to secondary service connection, reasoning that chest pain followed the surgical repair of T6-7 for an arachnoid cyst, status-post T5-8 laminectomy, but that pulmonary emboli were diagnosed, a CT (computed tomography) scan showed mild atelectasis, and an EKG (electrocardiogram) showed no abnormality. She then stated that while intermittent chest pain persisted, a direct correlation "between the two" had not been established. The Board finds that the September 2021 VA opinions regarding the Veteran's angina are inadequate for a number of reasons. First, the examiner's findings are not entirely consistent with the evidence of record. The examiner stated on more than one occasion that chest pain did not start until 2013, where the Board emphasized in its remand that a February 2008 private treatment record showed diagnoses of costochondritis, pulmonary edema, and asthmatic bronchitis, and that the file also contained chest x-rays from June 2010, February 2011, and January 2012. While the VA examiner cited to that evidence in one of her opinions, her repeated statement that the Veteran's chest pain "started" in 2013 indicates that it is unlikely that she actually reviewed these earlier records. Second, the examiner did not clearly differentiate between her opinions as to either theory of service connection, inasmuch as she supported one of her opinions on direct service connection by reasoning that there was no correlation between the Veteran's angina and her service-connected low back disability (which relates to her theory that her angina is secondary to her service-connected low back disability). Third, her opinion that the Veteran's chest pain was not aggravated by her service-connected low back disability is not supported by any rationale. Fourth, her opinions are internally inconsistent in that she identified the pulmonary emboli diagnosis as the cause of the Veteran's chest pain but stated elsewhere that there was no continued correlation to establish a known cause of origin. Finally, the examiner attributed the Veteran's chest pain, in 2013 at least, to the diagnosis of pulmonary emboli, but failed to consider whether the Veteran's December 2012 back surgery caused the pulmonary emboli. The Board notes that if it is determined that the Veteran's pulmonary emboli were caused by her service-connected low back disability, to include as a result of her December 2012 low back surgery, and that it is also determined that the pulmonary emboli caused her angina, then the proximate cause of her angina would be her low back disability. In this regard, the Board finds that the September 2021 VA examiner did not sufficiently consider the Veteran's contention that her low back disability, including its requirement of surgery in December 2012, ultimately caused or aggravated her chest pain/angina. In light of these errors, the Board finds that a remand for addendum opinions is warranted. These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to the VA examiner who examined the Veteran's low back in September 2021. The examiner should review her September 2021 VA examination report and the other evidence of record. After reviewing the record, the examiner should specifically indicate whether the Veteran has experienced functional loss that is functionally equivalent to ankylosis of the thoracolumbar spine and, if so, whether it has been more closely equivalent to favorable or unfavorable ankylosis, and how often such functional impairment has occurred. If the September 2021 VA examiner is no longer employed by VA or is otherwise unable to provide the requested opinion, arrange to obtain the information from another qualified examiner. The need for another in-person examination or video and/or telephonic interview of the Veteran is left to the discretion of the examiner. A complete medical rationale for all opinions expressed must be provided. 3. Also arrange to provide the record on appeal to the VA examiner who provided an opinion as to the etiology of the Veteran's disability manifested by chest pain, diagnosed as angina, in September 2021. After reviewing the record, the examiner should offer an addendum opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's angina had its onset in, or is otherwise attributable to, service. In so doing, the examiner should consider a February 2008 private treatment record showing diagnoses of costochondritis, pulmonary edema, and asthmatic bronchitis, as well as June 2010, February 2011, and January 2012 chest x-rays. The examiner should also consider the January 2013, March 2013, April 2013, and June 2013 VA treatment records showing treatment for chest pain and that differential diagnoses included musculoskeletal versus gastroesophageal reflux disease verus nerve damage. If the examiner finds that it is unlikely that the Veteran's angina had its onset in, or is otherwise attributable to, service, she should offer a further opinion as to whether it is at least as likely as not that the disability was a) caused or b) aggravated (i.e., worsened beyond its natural progression) by the Veteran's service-connected low back disability, to include as a result of her December 2012 low back surgery. In this regard, the examiner should determine whether the Veteran's low back disability, to include her December 2012 low back surgery, caused pulmonary emboli, which the examiner in her September 2021 examination indicated was the cause of her chest pain. In so doing, the examiner should consider the same evidence of record outlined in the paragraphs above for direct service connection, as well as the Veteran's contention that her chest pain was caused by and/or worsened by her December 2012 back surgery. If the September 2021 VA examiner is no longer employed by VA or is otherwise unable to provide the requested opinion, arrange to obtain the information from another qualified examiner. The need for another in-person examinations, video and/or telephonic interview of the Veteran is left to the discretion of the examiner. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, Associate 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.