Citation Nr: 22014191 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-10 819A DATE: March 11, 2022 REMANDED Entitlement to service connection for a cervical disability is remanded. Entitlement to service connection for a lumbar disability is remanded. Entitlement to service connection for a bilateral shoulder disability is remanded. Entitlement to service connection for a bilateral elbow disability is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Navy from January 1989 to May 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in July 2021, at which point it was remanded for an addendum opinion. While the Board regrets additional delay, the addendum opinion is inadequate, and an additional remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a cervical disability is remanded. 2. Entitlement to service connection for a lumbar disability is remanded. 3. Entitlement to service connection for a bilateral shoulder disability is remanded. 4. Entitlement to service connection for a bilateral elbow disability is remanded. The Veteran maintains that he developed cervical, lumbar, bilateral shoulder, and bilateral elbow disabilities from his work in the Navy. The Veteran testified that he served for over three and a half years on a submarine as a machinist mate, which entailed work in operations, maintenance, and repair as well as extensive training. He reported that this work involved lifting/carrying up to 100 pounds, utilizing the upper extremities extensively with repetitive motion, and standing for 12 to 18 hours in a shift. He further indicated that he was required to move quickly across metal decking and through tight spaces, which often resulted in him bumping his head, neck, and shoulders. He also indicated he worked continuously and only received breaks to eat and sleep. Additionally, the Veteran testified that he did not seek any treatment during service for complaints of neck, back, shoulder, or elbow pain because it was not an option. He testified that he was one of three men standing watch and there was no one to take his place. The Veteran further testified that he reported pain to doctors after he left the military, but he stopped pursuing it because the doctors did not address his complaints. The Veteran also told a VA examiner in August 2015 that his back pain started in approximately 2007, but he experienced achiness prior to this date. Additionally, the Veteran told a VA examiner in September 2019 that his musculoskeletal pain developed over time from wear and tear during service, which included extensive repetitive motion of the upper extremities and blows to the head from going through small doors. Consistent with the Veteran's reports, his neurosurgeon concluded in July 2009 that his work in the Navy may have put him at risk for stress on the back and further degenerative changes. In reaching this conclusion, the neurosurgeon noted that the Veteran's was constantly on his feet, doing drills, running on metal decking, and wearing hard soled shoes during his time on the submarine. However, the Board finds that this opinion inadequate in establishing a nexus because it is speculative in nature. Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009) (medical opinion is speculative when it uses equivocal language such as "could" or "might," without any other rationale or supporting data); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (doctor's statement that the veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (determining that a medical opinion framed in terms of "may or may not" is speculative and insufficient to support an award of service connection for the cause of death). Contrary to this opinion, two VA examiners concluded that the Veteran's cervical, lumbar, bilateral elbow, and bilateral shoulder disabilities are not related to service. However, the Board finds that these opinions are also inadequate. In January 2017, a VA examiner concluded that it is less likely than not that the abnormally strenuous circumstances and working conditions the Veteran was exposed to while on active duty aboard a submarine either caused or aggravated his current neck, back, left knee, bilateral shoulder, and bilateral elbow arthritis. As this opinion includes no rationale, the Board finds that it is inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions."). Another VA examiner concluded in September 2021 that the Veteran's claimed bilateral elbow, cervical spine, lumbar, and bilateral shoulder disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner noted that there is no report of elbow, neck, back, or shoulder conditions, pain, diagnoses, or symptoms in the entire military record. The examiner further noted that the record is not positive for complaints of elbow, neck, back, or shoulder symptoms until 2006 and 2007, which is 11 to 12 years after leaving service. The examiner addressed the note from the treating neurosurgeon, who concluded that the Veteran's work may have put him at risk for stress on the back and further degenerative changes. However, she concluded that this was pure speculation and concluded that the Veteran's history of smoking could have contributed to the Veteran's claimed conditions as well, as there is research that supports this cause for joint and spine pathology. Additional records were added to the Veteran's claims file and the September 2021 VA examiner was asked to give an addendum opinion. She provided this opinion in December 2021 and offered the same rationale. However, she noted that the Veteran's medical records from the Social Security Administration indicate that the Veteran did not report an onset of pain to his treating doctors until 2007 and later. The Board finds that the VA examiner's September and December 2021 opinions are inadequate because they do not sufficiently consider the Veteran's lay statements. Notably, the examiner did not address the Veteran's reports to her that his back, neck, shoulder, and elbow issues developed over time from wear and tear during service, which included extensive repetitive motion of the upper extremities and blows to the head going through small doors. She also did not address the Veteran's testimony that he stopped pursuing care for his back until it became severe because his doctors ignored his complaints. The Board finds that the Veteran is competent to report the onset and continuity of his symptoms. 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As the examiner failed to consider the Veteran's competent lay statements, the Board finds that her opinions are inadequate. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While the Board regrets the further delay, for these reasons, it is necessary to have a new VA medical examiner provide an opinion. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records. 2. Obtain an addendum opinion from an appropriate examiner who has not participated in this case regarding the nature and etiology of the Veteran's lumbar, cervical, shoulder, and elbow disabilities. The examiner should take a thorough history from the Veteran as it pertains to the onset of symptoms for his back, neck, shoulder, and elbow conditions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner should provide an opinion as to the following: (a) LUMBAR DISABILITY: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's lumbar disability is related to, or had its onset during, the Veteran's active service and explain why or why not. (b) CERVICAL DISABILITY: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's cervical disability is related to, or had its onset during, the Veteran's active service and explain why or why not. (c) ELBOW DISABILITY: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral elbow disability is related to or had its onset during service or is related to, or had its onset during, the Veteran's active service and explain why or why not. (d) SHOULDER DISABILITY: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral shoulder disability is related to, or had its onset during, the Veteran's active service and explain why or why not. *In formulating an opinion, the examiner should consider the physical demand of the Veteran's MOS as well as the Veteran's reports that he did not seek treatment during service because it was not an option and after service because his complaints were ignored. 3. After ensuring that the opinions comply with the terms of this remand, the AOJ should re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.