Citation Nr: 22014656 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-39 998 DATE: March 14, 2022 REMANDED Service connection for a neck condition is remanded. Service connection for a back condition is remanded. Service connection for a mood disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1976 to December 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, a hearing was held before the undersigned; a transcript is associated with the record. 1. Service connection for a neck condition is remanded. The Veteran was injured during a game of football during service in August 1976. A service treatment record entry from August 1976 indicates that the Veteran was unable to move. A September 1976 entry indicates that the Veteran had an onset of upper back pain. See service treatment records. An April 1996 cervical spine x-ray indicates moderate degenerative changes with disc space narrowing and foraminal encroachment between C-4 and C-7. A February 2003 medical treatment note indicates that the Veteran had a clinical diagnosis of cervical spondylosis for which he was taking medication. The Veteran reported that he incurred a neck injury when he fractured his left forearm during service while playing football. An August 2006 medical treatment note indicates that the Veteran reported upper back and neck pain dating back 24 years (1986). The Veteran reported that that his pain came from an injury he incurred while playing football during service. The Veteran was afforded a June 2013 VA examination during which the conducting physician opined that it was less likely than not that the Veteran's neck condition was causally related to his service-connected left forearm condition. As a rationale, the physician explained that there is no medical reason why a forearm fracture would cause chronic neck pains or a neck disorder. The physician also noted that a November 1994 medical examination indicated that the Veteran's neck pain at the time of his football injury was giving him no present difficulty. The physician opined that there was no nexus between his in-service injury and his present neck condition. The Board finds the examiner's opinion inadequate because it is not supported by a rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran testified at the Board hearing that he sustained an injury to his neck during service while playing football. The Veteran explained that that he was admitted to the hospital for an injury to the left forearm because it was more severe than his neck and back injuries. The Veteran further testified that he stayed in the hospital for over three weeks because he was paralyzed. The Veteran explained he could not move nor sit up. The Board finds the Veteran competent and credible to testify to the fact that he temporarily could not move after his neck injury during service because it is an observable symptom. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The evidence indicates that the Veteran has a diagnosed neck condition. The Veteran's service treatment records indicate that he was injured while playing football and subsequently was unable to move. See August 1976 service treatment note. The Board finds that this creates at least an indication that the Veteran's neck condition is causally related to his in-service football injury. Accordingly, this matter is remanded for a VA examination. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Service connection for a lower back condition is remanded. As indicated above, the Veteran was injured during an in-service football game and was subsequently unable to move in August 1976. A November 1999 medical treatment note indicates that the Veteran slipped at work two months prior which resulted in severe back pain. A December 2006 medical treatment note indicates that degenerative changes were seen in the thoracic and lumbar spines. The Veteran was afforded a June 2013 VA examination during which the conducting physician opined that it was less likely than not that the Veteran's lower back condition was causally related to his left forearm condition. As a rationale, the physician explained that there is no medical reason why a forearm fracture would cause chronic back pains or any back disorder. In a January 2014 addendum opinion, the VA physician opined that it was less likely than not that the Veteran's back condition was causally related to service. As a rationale, the physician explained that while there is evidence that the Veteran injured his "upper back" during service, there is no evidence that he ever had a chronic low back problem. The physician noted that the Veteran denied a recurrent or chronic lower back problem on his separation examination. The physician further noted that the Veteran injured his back in 1999 and was seen for low back pains. The Veteran testified at the Board hearing that his pain started to become severe around 1993 but that he just pushed through it at work. The Board does not assign probative value to the June 2013 VA examination because the Veteran does not report that his back injury was causally related to his forearm injury. Additionally, the Board does not assign probative value to the January 2014 VA addendum opinion, which was based, in large part, on the absence of in-service and post-service documentation of a lower back injury. The opinion also does not address the Veteran's statements that he was experiencing pain as early as 1993 which would have predated his work injury in September 1999. Dalton v. Peake, 21 Vet. App. 23 (2007). The evidence indicates that the Veteran has a diagnosed back condition. The Veteran's service treatment records indicate that he was injured while playing football and subsequently was unable to move. The Board finds that this creates at least an indication that the Veteran's back condition is causally related to his in-service football injury. Accordingly, this matter is remanded for a VA examination. See McClendon supra. 3. Service connection for a mood disorder is remanded. A June 1975 pre-service medical treatment note indicates that the Veteran had frequent trouble sleeping along with depression or excessive worry. At the December 1977 separation examination, the conducting physician noted that the Veteran had depression or excessive worry. See service treatment records. At a September 2012 medical treatment, the Veteran reported that his depression started when he got out of the military, but it was started to worsen in the last 15 years (1997). The Veteran was afforded a June 2013 VA examination during which he denied a history of mental health problems or treatment prior to entering the military. The Veteran denied receiving psychological treatment while on active duty. The conducting physician opined that it was less likely than not that the Veteran's mood disorder was caused by his service. As a rationale, the physician explained that there is no mention of depression related to his pain anywhere in the medical record from the time of his discharge in 1977 until he re-engaged in mental health treatment in 2012. The physician noted that the Veteran's entrance examination in June 1975 indicated that the Veteran was experiencing frequent trouble sleeping, depression or excessive worry and nervous trouble or any sort. The physician further noted that the only mention of depression during the Veteran's military service was on his separation examination which indicated that the was experiencing depression or excessive worry. The physician explained that not further information was provided regarding this symptom and the Veteran's military service treatment records provide no further evidence of mental illness that could have been incurred in or caused by his military service. The physician opined that it is as likely as not that the Veteran's reported symptom of depression could have been related to his pre-military symptoms indicated in July 1975. The physician also opined that it was at least as likely as not that the Veteran's mood disorder was proximately due to his lower back pain for which he is not yet service-connected. The physician explained that the causal connection between the Veteran's neck and back pain and depressive symptoms have been well-documented in his medical record since September 2012. At a January 2014 VA examination, the physician opined that it was less likely than not that the Veteran's mood disorder, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. As a rationale, the physician explained that the Veteran's current depressive symptoms appear to be due to pain. The physician explained that there is no mention of depression related to pain or his military service anywhere in the Veteran's medical record from the time of his discharge from the Army in 1977 until he re-engaged in mental health treatment in 2012, despite participating in substance abuse treatment for an addiction to crack cocaine at the VA and in the community between approximately 1983 and 2006. The physician explained that whatever depressive symptoms the Veteran reported on his pre-military physical dated in July 1975 and his separation physical dated in December 1977 appear to be separate and distinct from his current diagnosis of mood disorder due to a general medical condition. The physician further explained that in the July 1975 medical treatment note, the Veteran admitted to experiencing frequent trouble sleeping, depression or excessive worry and nervous trouble of any sort. The physician noted that the Veteran's separation physical from December 1977 indicated that the Veteran was experiencing only depression or excessive worry. The physician concluded that given that the Veteran reported fewer psychological symptoms on his separation examination, there is evidence that his in-service depression actually decreased in severity during his service. The Board cannot assign probative value to this opinion because the examiner based their opinion, in large part, due to the lack of in-service and post-service treatment records documenting depression related to pain or his military service. See Dalton supra. The Veteran submitted a May 2020 private medical opinion from his physician who opined that the Veteran's mood disorder is more likely than not a continuation of, related to, secondary to, or aggravated by the military service-connected left forearm fractures. As a rationale, the physician explained that the Veteran's pain contributed to the ending of both marriages and due to issues related to his pain and mood, he has not dated since the divorce. The physician also explained that the Veteran's pain affected him at his jobs, and he had difficulty concentrating when his pain increased. The physician described having feelings of guilt and worthlessness about the effects that his pain condition is having on all the aspects of his life. The Board cannot assign probative value to this opinion because the physician did not address the fact that the Veteran's mood disorder existed prior to his service. Rather, the physician indicated that that the Veteran's mental health history only dated back to 2013. The Veteran testified at the Board hearing that his mood disorder is associated with his pain. The Veteran testified that he noticed symptoms of his mood disorder around 1993. The evidence indicates that the Veteran has a diagnosed mood disorder which is existed prior to service. The Board finds that there is at least an indication that the Veteran's pre-existing mood disorder was aggravated beyond its natural progression by service. Accordingly, this matter is remanded for a VA examination. See McClendon supra. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Schedule the Veteran for an examination with an appropriate specialist or physician to determine the nature and cause of the Veteran's neck condition. 3. After reviewing the claims file, the examiner should provide an opinion, with supporting rationale, as to the following question: Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's neck condition is causally related to his service? The examiner is to assume that the Veteran's testimony (that he stayed in the hospital for over three weeks because he was temporarily paralyzed from a football injury) is accurate and credible. 4. Schedule the Veteran for an examination with an appropriate specialist or physician to determine the nature and cause of the Veteran's back condition. 5. After reviewing the claims file, the examiner should provide an opinion, with supporting rationale, as to the following question: Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's back condition is causally related to his service? The examiner is to assume that the Veteran's testimony (that he stayed in the hospital for over three weeks because he was temporarily paralyzed from a football injury) to be accurate and credible. 6. Schedule the Veteran for an examination(s) with an appropriate examiner(s) to evaluate the nature and cause of his mood disorder. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. Based on review of the claims file, the examiner should provide an opinion on the following: Please opine whether there is CLEAR AND UNMISTAKABLE EVIDENCE that the Veteran's mood disorder BOTH pre-existed service AND was not aggravated beyond its natural progression during service. The opinion provider MUST consider the Veteran's competent AND CREDIBLE statements that his depression started when he got out of the military, but it started to worsen around 1997. A complete explanation (rationale) for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If opinions cannot be provided without resorting to speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that the examiner has exhausted the limits of current medical knowledge in providing an answer to that particular question. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.