Citation Nr: 22019552 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 16-48 161 DATE: April 1, 2022 REMANDED Entitlement to service connection for a thoracolumbar spine condition is remanded. Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for a left upper extremity condition, to include carpal tunnel syndrome (CTS), tendonitis, and radiculopathy, to include as secondary to a spinal condition, is remanded. Entitlement to service connection for a right upper extremity condition, to include CTS, tendonitis, and radiculopathy, to include as secondary to a spinal condition, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1967 to September 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) regional office. These matters were previously remanded by the Board in January 2021. In April 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See April 2019 Board Hearing Transcript. In October 2019, the Board continued the denial of the Veteran's claims of entitlement to service connection for degenerative disc disease of the cervical spine and bilateral upper extremity radiculopathy of the cervical spine. The Veteran appealed the denied claims to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the parties entered into a Joint Motion for Remand (JMR), in which the parties agreed that a remand was warranted as the Board did not provide an adequate statement of reasons or bases in support of its decision. Specifically, the parties agreed that the Board did not adequately address whether service connection could be established by a continuity of symptomatology. The parties also agreed that a remand was warranted to address whether a new medical opinion was necessary. In June 2021, the Court granted the JMR and remanded the claims for further development. As an initial matter, the Board notes that the Veteran filed claims of entitlement to service connection for C4-7, chronic back pain C6-7, bilateral carpal tunnel syndrome (CTS), bilateral tendonitis, and neuropathy. See April 2013 VA Form 21-526. In its January 2021 decision, the Board recharacterized the Veteran's claims as: entitlement to service connection for a back condition; entitlement to service connection for a right upper extremity condition, to include as secondary to a back condition; and entitlement to service connection for a left upper extremity condition, to include as secondary to a back condition. However, in an effort to avoid confusion, the Board finds it appropriate to recharacterize the claims as set forth below. 1. Entitlement to service connection for a thoracolumbar spine condition is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the January 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in January 2021, the Board instructed the AOJ to obtain the entirety of the Veteran's VA treatment records from Wilkes-Barre VA Medical Center (VAMC), Orlando VAMC, Butler VAMC, and Fayetteville AR VAMC. While records relating to treatment at Orlando VAMC, Houston VAMC, Pittsburgh VAMC, White River Junction VAMC, and Butler VAMC were associated with the claims file, no records relating to treatment at Wilkes-Barre VAMC or Fayetteville AR VAMC were associated with the claims file, nor is there any indication that such records were requested. See Orlando VAMC records, received January 2021, May 2021, June 2021, and January 2022 in CAPRI; Houston VAMC records, received January 2022 in CAPRI; Pittsburgh VAMC records, received January 2022 in CAPRI; White River Junction VAMC records, received January 2022 in CAPRI; Butler VAMC records, received January 2022 in CAPRI. As the Board cannot find substantial compliance with the January 2021 remand directives, a remand is necessary to allow the AOJ to obtain records relating to treatment at Wilkes-Barre VAMC and Fayetteville AR VAMC. Even if the Board could find substantial compliance with the January 2021 remand directives, a remand would be warranted nonetheless to allow the AOJ to conduct additional development. First, a remand is necessary as the record indicates that potentially relevant medical records may not have been associated with the claims file. Specifically, the record indicates that the Veteran has received treatment at the Austin VAMC and Northport VAMC. See December 2020 VA Inquiry. However, no records relating to such treatment have been associated with the claims file, nor is there any indication that such records have been requested. As such, a remand is necessary to ensure that all relevant VA treatment records have been obtained and associated with the electronic claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, a remand is necessary to allow the AOJ to obtain an adequate opinion regarding the nature and etiology of the Veteran's thoracolumbar spine condition. In July 2021, the Veteran underwent a VA examination in which the examiner noted a diagnosis of degenerative disc disease. Ultimately, the examiner opined that the Veteran's condition was less likely than not related to his active duty service. In support of this opinion, the examiner stated that the Veteran's in-service back condition was acute only and that there was no documented evidence of chronicity of care and symptoms until July 2018. See July 2021 VA Back Conditions Disability Benefits Questionnaire (DBQ), received September 2021; August 2021 VA Medical Opinion DBQ, received September 2021. In December 2021, the examiner provided an addendum opinion, in which the examiner acknowledged that the Veteran was competent to report chronicity of symptoms, but as there was no radiographic evidence of disruption of the joint during active duty, his back condition was most likely a natural part of the aging process. See December 2021 VA Addendum Opinion DBQ. However, the Veteran is competent to report the onset and progression of symptomatology, and an opinion based on the absence of treatment records without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the Veteran's VA treatment records reveal complaints of back pain as early as January 2016, and not 2018 as noted by the examiner. As such, the examiner's opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 4 Vet. App. 458 (1993). Moreover, as discussed above, the record indicates that pertinent medical records have not been associated with the claims file. As such, the examiner was unable to consider the Veteran's prior medical history and, therefore, the July 2021 opinion cannot be considered adequate for decision-making purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For these reasons, the Board finds the January 2021 and December 2021 opinions to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed thoracolumbar spine condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, the Board finds that this issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert (IME) is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, multiple VA opinions have been unable to adequately answer the question of the etiology of the Veteran's thoracolumbar spine condition. The AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. 2. Entitlement to service connection for a cervical spine condition is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the AOJ has not substantially complied with the January 2021 remand directives. See Stegall v. West, supra. First, as discussed above, records relating to treatment at Wilkes-Barre VAMC or Fayetteville AR VAMC were not associated with the claims file, nor is there any indication that such records were requested. Second, in January 2021, the Board instructed the AOJ to afford the Veteran with an examination to determine the nature and etiology of his claimed back condition, whether thoracolumbar or cervical in nature. However, while the Veteran was afforded a VA examination and opinions were obtained concerning his thoracolumbar condition, no examination was afforded, or opinion obtained, concerning his cervical spine condition. See July 2021 VA Back Conditions DBQ; August 2021 VA Medical Opinion DBQ; As the Board cannot find substantial compliance with the January 2021 remand directives, a remand is necessary to allow the AOJ to obtain records relating to treatment at Wilkes-Barre VAMC and Fayetteville AR VAMC, and to afford the Veteran with an examination to determine the nature and etiology of his claimed cervical spine condition. Even if the Board could find substantial compliance with the January 2021 remand directives, a remand would be warranted nonetheless to allow the AOJ to obtain any outstanding pertinent medical records. Specifically, as discussed above, records relating to treatment at Austin VAMC and Northport VAMC have not been associated with the claims file. Additionally, the record indicates that the Veteran received treatment for his cervical spine condition from Queens-Long Island Medical Group. See White River Junction VAMC records. As such, a remand is necessary to allow the AOJ to obtain pertinent medical records. See 38 U.S.C. § 4103(a)(1), (b)(1), 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, supra; Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Further, the Board finds that this issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert (IME) is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, multiple VA opinions have been unable to adequately answer the question of the etiology of the Veteran's cervical spine condition. The AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. 3. Entitlement to service connection for a left upper extremity condition, to include CTS, tendonitis, and radiculopathy, to include as secondary to a spinal condition, is remanded. 4. Entitlement to service connection for a right upper extremity condition, to include CTS, tendonitis, and radiculopathy, to include as secondary to a spinal condition, is remanded. The Board regrets the delay associated with this remand, particularly as this matter is the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the AOJ has not substantially complied with the January 2021 remand directives. See Stegall v. West, supra. First, as discussed above, records relating to treatment at Wilkes-Barre VAMC or Fayetteville AR VAMC were not associated with the claims file, nor is there any indication that such records were requested. Second, in January 2021, the Board instructed the AOJ to afford the Veteran with an examination to determine the nature and etiology of his claimed bilateral upper extremity condition. While the Veteran was afforded a VA examination regarding peripheral nerve conditions, the Veteran's claimed CTS and tendonitis were not addressed. See July 2021 VA Peripheral Nerves Conditions DBQ, received August 2021. As the Board cannot find substantial compliance with the January 2021 remand directives, a remand is necessary to allow the AOJ to obtain records relating to treatment at Wilkes-Barre VAMC and Fayetteville AR VAMC, and to afford the Veteran with an examination to determine the nature and etiology of his claimed bilateral upper extremity conditions. Even if the Board could find substantial compliance with the January 2021 remand directives, a remand would be warranted nonetheless to allow the AOJ to obtain any outstanding pertinent medical records. Specifically, as discussed above, records relating to treatment at the Austin VAMC and Northport VAMC have not been associated with the claims file. Additionally, the record indicates that the Veteran received treatment for his cervical spine condition, to include radiculopathy associated therewith, from Queens-Long Island Medical Group. See White River Junction VAMC records. As such, a remand is necessary to allow the AOJ to obtain pertinent medical records. See 38 U.S.C. § 4103(a)(1), (b)(1), 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, supra; Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Moreover, with respect to the Veteran's diagnosed bilateral cervical radiculopathy, the Board finds the issue to be inextricably intertwined with the Veteran's claim of entitlement to service connection for a back condition, which is remanded herein. As such, a remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Further, the Board finds that this issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert (IME) is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, multiple VA opinions have been unable to adequately answer the question of the etiology of the Veteran's bilateral upper extremity conditions. The AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the claims file any outstanding medical records, whether VA or private, including: (a.) Records relating to treatment from Queens-Long Island Medical Group; (b.) The entirety or records relating to treatment at Wilkes-Barre VAMC, Fayetteville AR VAMC, and Austin VAMC; and (c.) Records relating to treatment at Orlando VAMC from January 2022 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, OBTAIN AN ADVISORY MEDICAL OPINION FROM AN APPROPRIATE MEDICAL EXPERT, PURSUANT TO 38 U.S.C. § 5109 AND 38 C.F.R. § 3.328, REGARDING THE NATURE AND ETIOLOGY OF THE VETERAN'S THORACOLUMBAR AND CERVICAL SPINE CONDITIONS. The AOJ must follow its established procedures for requesting such an advisory opinion. The entire claims file must be provided to, and reviewed by, the physician. If the physician determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be conducted. The physician is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology and employment. (b.) For each diagnosed thoracolumbar or cervical spine condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) In formulating the requested opinions, the physician is asked to consider and specifically address: i. The Veteran's lay history, including his April 2019 Board testimony; ii. The Veteran's in-service treatment for back problems in December 1967 and March 1968, as well as his history of trauma at Parris Island; and iii. The May 2019 statement from his treating physician, opining that the Veteran's cervical radiculopathy was related to his in-service back/neck problems. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the physician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The physician is also advised that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. After completing the development above, and any additional development warranted by the record, OBTAIN AN ADVISORY MEDICAL OPINION FROM AN APPROPRIATE MEDICAL EXPERT, PURSUANT TO 38 U.S.C. § 5109 AND 38 C.F.R. § 3.328, REGARDING THE NATURE AND ETIOLOGY OF THE VETERAN'S THORACOLUMBAR AND CERVICAL SPINE CONDITIONS. The AOJ must follow its established procedures for requesting such an advisory opinion. The entire claims file must be provided to, and reviewed by, the physician. If the physician determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be conducted. The physician is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology and employment. (b.) For each diagnosed upper extremity condition, to include carpal tunnel syndrome, tendonitis, and radiculopathy, address the following: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. ii. If a spinal condition is found to be related to service above, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the upper extremity condition is caused by the service-connected spinal condition. iii. If a spinal condition is found to be related to service above, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the upper extremity condition underwent an incremental increase (aggravated), regardless of permanence, due to the service-connected spinal condition. (c.) In formulating the requested opinions, the examiner is asked to consider and specifically address: i. The Veteran's lay history, including his April 2019 Board testimony; ii. The Veteran's in-service treatment for back problems in December 1967 and March 1968, as well as his history of trauma at Parris Island; and iii. The May 2019 statement from his treating physician, opining that the Veteran's cervical radiculopathy was related to his in-service back/neck problems. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the physician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The physician is also advised that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.