Citation Nr: 22014000 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-31 867 DATE: March 11, 2022 REMANDED 1. Entitlement to service connection for a neck condition is remanded. 2. Entitlement to service connection for a low back condition is remanded. 3. Entitlement to service connection for a right-hand condition is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1987 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The claims were previously remanded by the Board in January 2020, June 2020, and May 2021. In May 2021, the Board remanded the issues on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Although new opinions were added to the claims file pursuant to the May 2021 Board remand, another remand is necessary to address deficiencies in said opinions. As such, substantial compliance has not been achieved. 1. Entitlement to service connection for a neck condition is remanded. The Veteran contends he is entitled to service connection for a neck condition. Specifically, the Veteran contends he began experiencing neck pain after being involved in a motor vehicle accident (MVA) while on active duty. See Hearing Transcript pg. 3. Service treatment records (STRs) include notes detailing the Veteran's MVA during active-duty service. See June 1990 STR. In October 2008, the Veteran complained of chronic neck pain that prevents him from exercising. The private examiner noted an impression of chronic neck pain and performed an MRI on the Veteran's C-spine. The test revealed a mild bulged disc. A July 2009 private evaluation note includes the Veteran's report of neck pain radiating down the right arm into the right hand causing numbness and tingling into the right hand. December 2012 C-spine MRI revealed osteophyte formation and bulging narrowing at C5/C6, which was noted to be suggestive of musculoskeletal strain. A March 2013 C-spine MRI revealed C5-6 disc with right NF narrowing. Resultingly, the Veteran underwent a cervical epidural steroid injection to reduce his pain and increase range of motion. See April 2013 Medical Treatment Record Non-Government. An April 2014 private treatment report notes neck pain due to inflammatory spinal disease. See Rural Outreach Arthritis Center. In the June 2020 remand, the Board found the March 2020 VA examiner's opinion inadequate because the examiner relied on a lack of medical records documenting the Veteran's neck symptomatology as the basis for determining the claimed condition is not related to his military service. In October 2020, a VA medical examiner diagnosed the Veteran with cervical spine degenerative disc disease, but opined that the condition was not related to his military service because the Veteran did not seek treatment until many years after service. However, as the Veteran has reported having symptoms for 30 years, the May 2021 Board remand directives requested an opinion on whether the Veteran has a current neck condition that onset in or is related to service, to include a MVA in service. A July 2021 VA examiner opined that the Veteran's current neck disability is less likely than not incurred in or caused by an in-service injury. In support of this opinion, the examiner noted that no chronic diagnosis was provided on active duty, and X-rays were normal with no evidence of chronicity of care or radicular symptoms in service. The examiner went on to highlight that in 2003 an MRI showed herniation with radiculopathy, but the record lacks evidence showing circumstances surrounding the onset of the radicular pain. Continuing, the examiner noted that the Veteran was involved in another motor vehicle accident in 2005 which indeed aggravated his neck pain. The Board deems the July 20201 neck opinion inadequate. First, while the examiner addressed the theory of continued symptomology, she failed to address why the Veteran's current neck condition is not directly related to his in-service motor vehicle accident. Moreover, the rationale noted that the Veteran was involved in another motor vehicle accident in 2005, which indeed aggravated his neck pain. It is unclear to the Board where the examiner got this information as no such information is found within the clinical records. The Board acknowledges the February 2014 private notation that the Veteran's back and neck injuries are related to an auto accident, and increased after the accident, but there is no indication that this notation is referring to an auto accident which occurred in 2005, but rather to the MVA in service. Due to the examiner's failure to medically explain why the Veteran's current neck condition is not directly related to his in-service MVA, and because the opinion is based on inaccurate medical history, the opinion is of no probative value. Accordingly, a new VA opinion is necessary. 2. Entitlement to service connection for a low back condition is remanded. The Veteran contends that a preexisting low back condition was aggravated by military service. At the Board hearing, he stated that he was involved in a motor vehicle accident in service which worsened his back condition. He further testified that participating in physical training, mechanical work, and riding over rough terrain during service caused back pain. Pre-service medical records document that the Veteran underwent back surgery for herniated discs prior to service entrance when he was 13 years old in September 1982. The Veteran's July 1987 service entrance medical examination and history report note that the Veteran underwent back surgery prior to entering service, and that he experienced recurrent back pain. In October 1990, while in service, the Veteran complained of low back pain in left groin. Following service separation, the Veteran sought treatment for low back pain. A February 2014 private treatment record from Rural Outreach Arthritis Center notes back and neck injuries related to an auto accident. During this examination, the Veteran reported increased back and neck symptomology after his in-service motor vehicle accident (MVA) that continues to worsen. See February 2014 Medical Treatment Record Rural Outreach Arthritis Center. A radiology report from February 2014 indicates the Veteran's lumbar spine was unremarkable. An April 2014 private consult note from the arthritis center noted back pain caused by spinal inflammation. The final impression was noted as spondyloarthritis. A June 2014 private treatment note reveals lumbar spine with tenderness and limited range of motion. After a March 2020 examiner concluded that the Veteran did not have a current back disability, the Board remanded the claim in June 2020 for a new opinion because the examiner did not consider the April 2014 diagnosis of spondyloarthritis, or the Veteran's preexisting condition. In October 2020, a VA examiner did not discuss the 2014 diagnosis, and provided contradicting opinions. First, the examiner opined it was at least as likely as not that the Veteran clearly had degenerative disc disease of the spine and surgery prior to service, back pain recurred while in service, and his current pain are most likely due to the pre-service. Then, the examiner opined that the Veteran's back condition clearly and unmistakable preexisted service, but the condition was not aggravated by service. As rationale, the examiner stated that because there were no service treatment records regarding the lumbar spine, then the condition was not made worse. The VA examiner also stated there was no evidence of disease of the back. Due to the inadequacy of the October 2020 opinion, the Board remanded this issue in May 2021, seeking to obtain a new opinion. Specifically, the Board required that a new VA examiner address any diagnoses or conditions concerning the Veteran's back that are found in the STRs and state whether those conditions clearly and unmistakably preexisted service; and, if diagnoses are found, the examiner was to state whether any back disabilities that preexisted service, clearly and unmistakably worsened during service; lastly, for any low back disorders that did not pre-exist service, the examiner was to state whether that disorder is related to service, to include being involved in a MVA, and aggravation caused by physical training, working on tanks, and riding in vehicles over rough terrain. Pursuant to the May 2021 remand, the July 2021 VA examiner found the Veteran's back condition was less likely than not incurred in or caused by the Veteran's service. The rationale explained that the Veteran had clear and unmistakable evidence of a pre-existing "low back condition," and although there is evidence which indicates the Veteran continued to suffer from the disorder during service, which is typical of the condition, the progression is not beyond normal progression for this disorder. Therefore, there is no evidence of permanent aggravation beyond normal progression identified. Continuing, the examiner explained that no chronicity of care is documented as a result of activities during active duty, and no back issues are noted at the time of the MVA. Although mentioned in the claims file, the examiner reported, there is no MRI for the lumbar spine from 2010 in evidence, and X-rays to date show normal lumbar spine with no traumatic arthritis. She concluded that if arthritis were present it is most likely progression of the laminectomy at age 13. The Board finds the July 2021 VA opinion to be inadequate. Specifically, the examiner was asked to "address any diagnoses or conditions concerning the Veteran's back that are found in the STRs and state whether those conditions clearly and unmistakably preexisted service." Here, the examiner failed to specify which diagnoses noted in the STRs pre-existed service. Rather, it was generally noted that the Veteran's "low back condition" pre-existed service. This opinion lacks the necessary specificity the Board needs to render a decision. Further, while the examiner found no aggravation, she also noted that there is evidence to indicate the Veteran continued to suffer from his disorder during service. This part of the rationale is problematic for two reasons: 1) the examiner failed to identify specifically what evidence was considered to indicate the Veteran continued to suffer from his disorder during service; and 2) the examiner did not explain why the evidence which indicated the Veteran continued to suffer from his disorder could not also prove that his disorder was aggravated during service. Essentially, the examiner simply listed data and conclusions with no connecting medical reasoning. Lastly, the May 2021 remand noted that for any low back disorders that did not pre-exist service, the examiner was to state whether that disorder is related to service, to include being involved in an MVA, and physical training, working on tanks, and riding in vehicles over rough terrain. The examiner neglected to address this directive all together, to include providing an opinion on whether the Veteran's diagnosed spondyloarthritis condition did not pre-date service and whether it is related to service. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (noting that a current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending). Although the Board truly regrets the additional delay, an addendum opinion is needed to properly determine the etiology of the Veteran's low back condition. 3. Entitlement to service connection for a right-hand condition is remanded. Lastly, the Veteran also seeks service connection for a right-hand condition. Service treatment records show right hand swelling, abrasions, and inability to make fist without pain due to an MVA. See June 1990 STR. An electrodiagnostic study performed in January 2013 revealed evidence of a moderate right carpal tunnel syndrome. The Board noted in the June 2020 remand that the March 2020 VA examiner determined that Veteran did not have a current right-hand disability and that there was no referred pain from the neck to the right hand, but failed to discuss a prior diagnosis of carpal tunnel syndrome. In October 2020, a VA examiner also opined that the Veteran does not have a right-hand condition that is related to the military. However, medical records submitted in November 2020 show the Veteran has carpal tunnel syndrome of the wrists. First, the Board notes that even if a disorder resolved during the appeal period, service connection may still be awarded if the diagnosis was made when the claim was filed or at any time while the appeal is pending. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Pursuant to the May 2021 remand, the July 2021 VA examiner opined that the Veteran's right-hand condition was less likely than not incurred in or caused by service. In support of this opinion, the examiner detailed that no chronic diagnosis is made for an orthopedic hand condition on active duty or after. This is evidenced by the fact that on active duty the Veteran's hand condition was an abrasion which resulted only in swelling. The examiner continued that no imaging was done, but the noted acute soft tissue injury was acute and not orthopedic. Therefore, chronicity of symptoms is subjective only, and a nexus has not been established. Again, the Board finds this opinion to be inadequate. First, the examiner noted that the Veteran's in-service injury resulted only in swelling and abrasions. The record does not support this fact. Indeed, June 1990 STR notes swelling, abrasions, and an inability to make a fist without pain. While the examiner did address the swelling and abrasions, she failed to explain why an inability to make a fist without pain during service did not cause or contribute to the Veteran's current condition. Further, while the examiner addressed the theory of continued symptomology, she failed to medically explain why the Veteran's current right-hand condition is not directly related to his in-service motor vehicle accident. Accordingly, an addendum opinion is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding VA medical records and associate them with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any updated treatment records from private providers. Make two requests for authorized records from any identified providers, unless it is clear after the first request that a second request would be futile. 3. Obtain a VA medical opinion from an orthopedist to diagnose and determine the nature and etiology of the Veteran's neck condition. If the clinician determines that an examination is necessary to assess the Veteran's condition, an examination should be scheduled. The claims file should be made available to the examiner for review. Based on review of the record (and examination of the Veteran), the examiner should respond to the following: a.) Is it at least as likely as not (probability of 50 percent or more) that the Veteran has a current neck condition that onset in or is related to service? b.) The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion, including, but not limited to the Veteran's lay statements of sustaining neck injuries during an in-service MVA. c.) The examiner should review the Veteran's claims file and provide a detailed and medically sound explanation for all elements of his/her opinion, citing to clinical findings, claims file documents, and/or medical literature as appropriate. d.) The examiner is advised that the lack of contemporaneous treatment records, alone, is an insufficient rationale for a negative opinion. 4. Obtain a VA medical opinion from an orthopedist to diagnose and determine the nature and etiology of the Veteran's low back condition. If the clinician determines that an examination is necessary to assess the Veteran's condition, an examination should be scheduled. The claims file should be made available to the examiner for review. Based on review of the record (and examination of the Veteran), the examiner should respond to the following: a) The examiner should address with specificity any diagnoses or conditions concerning the Veteran's back that are found in the STRs and state whether those conditions clearly and unmistakably preexisted service. Note: The Veteran underwent lumbar spine surgery prior to service in 1982. b) If diagnoses are found, the examiner should state whether any back disabilities that preexisted service, clearly and unmistakably worsened during service. c) If the examiner diagnoses any current low back conditions that did not preexist service, he or she must state whether it is at least as likely as not (probability of 50 percent or more) that the Veteran has a current back condition that onset in or is related to service. d) The examiner is advised that the Veteran has an April 2014 diagnosis of spondyloarthritis. e) The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinions, including, but not limited to the Veteran's lay statements of sustaining injuries during an in-service MVA, and aggravation caused by physical training, working on tanks, and riding in vehicles over rough terrain. f) The examiner must provide rationale for all opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. g) The examiner is advised that the lack of contemporaneous treatment records, alone, is an insufficient rationale for a negative opinion. 4. Obtain a VA medical opinion from a clinician with sufficient expertise to diagnose and determine the nature and etiology of the Veteran's right-hand condition. If the clinician determines that an examination is necessary to assess the Veteran's condition, an examination should be scheduled. The claims file should be made available to the examiner for review. Based on review of the record (and examination of the Veteran), the examiner should respond to the following: (a.) Is it at least as likely as not (probability of 50 percent or more) that the Veteran's current right-hand condition had its onset in or is related to service? The examiner must address STRs indicating a hand injury due to a MVA resulting in swelling, abrasions, and the inability to make fist without pain. (b.) If it is determined the Veteran has a neck condition etiologically related to his service: Does the Veteran have a current right-hand condition that is proximately due to, the result of, or aggravated by a neck condition? The examiner is asked to consider the July 2009 private evaluation note includes the Veteran's report of neck pain radiating down the right arm into the right hand causing numbness and tingling into the right hand. (c.) The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. (d.) The examiner must provide rationale for all opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (e.) The examiner is advised that the lack of contemporaneous treatment records, alone, is an insufficient rationale for a negative opinion. (Continued on the next page) 5. Then, readjudicate the issues on appeal. If any claim remains denied, provide the Veteran and his representative a supplemental statement of the case. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.