Service connection for right and left shoulder disorders is remanded.
Dr. Craig Bash has done thousands of case evaluations at the VA Hospital/regional office/BVA and court levels.
Complete list of BVA cases can be found at The Department of Veterans Affairs Website
(Search Dr. Bash, Craig N. Bash M.D., Dr. Craig Bash , Craig Bash, C.N.B.)
Citation Nr: 19101804 Decision Date: 01/08/19 Archive Date: 01/08/19 DOCKET NO. 16-21 975 DATE: January 8, 2019 ORDER Service connection for a thoracolumbar disorder is denied. REMANDED Service connection for right and left shoulder disorders is remanded. Service connection for right and left elbow disorders is remanded. Service connection for a cervical spine disorder is remanded. An initial, compensable disability rating prior to September 1, 2015, and higher than 10 percent thereafter, for a left foot disability, to include residuals of left foot chip fracture with mild degenerative arthritis is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a thoracolumbar spine disorder due to a disease or injury in service. CONCLUSION OF LAW The criteria for service connection for a thoracolumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1979 to May 1980 and February 1985 to April 1988, as well as, Reserve service. In April 2016, the Veteran had a hearing regarding the left foot claim before a Veterans Law Judge, who issued a November 2017 Board remand. That Veterans Law Judge is no longer with the Board. In November 2018, the Veteran verified that he did not wish to have a new hearing on that issue. The RO scheduled the Veteran for his requested hearing as to the other claims on appeal before a Veterans Law Judge. The Veteran did not attend his requested hearing. In a January 2018 rating decision, the RO implemented decisions made by the Board in November 2017, including a grant of a total disability rating based on individual unemployability (TDIU) and increased ratings for an acquired psychiatric disorder and rhinosinusitis. Those claims are not before the Board. In April 2016, Dr. C. Bash submitted a medical opinion, which included argument of clear and unmistakable error (CUE) in 2009 rating decisions. Dr. Bash is not the Veteran’s representative. Moreover, there is no 2009 rating decision. Any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000), aff’d sub nom, Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This has not been done. Accordingly, there was no specific CUE claim filed by or on behalf of the Veteran. The Board advises the Veteran that if he wishes to file a CUE claim with the RO, he or his representative must specify what RO decision is being challenged and on what specific basis. Service connection for a thoracolumbar disorder. The Veteran contends that he has had a low back disorder since service. Specifically, he contends that while stationed in Japan in June 1983 he had picked up a sheet of plywood during a typhoon, which got caught by the wind, and it caused him to twist and injure his lower back. He claims to have had chronic low back pain since that time. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Although the Veteran has a current diagnosis of a thoracolumbar spine disorder, and he has provided lay evidence as to an in-service injury, the preponderance of the probative evidence weighs against finding that his thoracolumbar spine disorder began during service or is otherwise related to an in-service injury, event, or disease. The Veteran is competent to report having experienced symptoms of back pain consistently since 1983, but he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a current thoracolumbar spine disorder. The issue is medically complex, as it requires knowledge of the interaction between multiple systems. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the Board finds that the Veteran is not credible in his reports of back pain since 1983. After the Veteran’s April 1988 separation from service, he served with the Air Force Reserve until he was retired in July 2001. Service treatment records document occasional reports of back pain. A June 1983 record documented a complaint of low back pain for 2 weeks. However, he subsequently denied having recurrent back pain in his reports of medical history, including in March 1988, May 1989, December 1993, and December 1998. In a February 2000 record he claimed to have had chronic low back pain since 1984. Additionally, Ponderosa Family Physicians records include a November 2000 report of chronic back pain since Desert Storm (not 1983 as he currently claims to VA), and an August 2002, post-retirement diagnosis of myalgias probably due to overuse. His private physician noted that the Veteran had been working out for a contest with a blackbelt martial arts program and did strenuous workouts. An October 2002 Grady Chiropractic record documented that he had had a motor vehicle accident in March 2002. He reported pain of the low back, neck, and painful joints. In his October 2002 automobile accident questionnaire, the Veteran specifically denied having complaints in the areas involved previously. An October 2002 X-ray report found early spondylosis of the mid-thoracic spine and early disc degeneration at L4/5 with early spondylosis. In an October 2009 Healthone Rose Medical Center record, the examiner found no joint pain, back pain, or myalgia. Given the inconsistencies in the histories of back pain reported by the Veteran and contemporaneous medical evidence, the Board finds his reports of chronic back pain since his 1983 injury during a typhoon are not credible. The Board also notes that in the April 2016, the Board remanded to obtain private chiropractor records. Although the AOJ requested that the Veteran provide authorization to obtain such records in February 2018, the Veteran did not respond to the request. The record contains conflicting medical opinions regarding whether the Veteran’s thoracolumbar spine disorder is at least as likely as not related to service. In November 2014, Dr. C. Bash reported that the Veteran had been “involved in a Typhoon where he likely worked in 100+ mile an hour winds. He was blown over while carrying a 4x8 piece of plywood. This injury is likely akin to a car accident whereby many body parts are injured simultaneously.” Dr. Bash found that the Veteran had been fit for duty without any doctor-diagnosed spine illnesses on enlistment and likely acquired a neck injury and lumbar injury during the typhoon as he remembers pain in both areas following the accident. He explained that typhoon accidents were known to cause multi-trauma with injuries in several body regions simultaneously, and the cumulative effect of his military service likely injured his cervical and lumbar spine. In contrast, an April 2016 VA examiner opined that the Veteran’s thoracolumbar spine disorder is not at least as likely as not related to an in-service injury, event, or disease, including the reported injury during a typhoon. The VA examiner explained that available service treatment records revealed evaluations for acute back symptoms, but were silent for evidence of chronic back symptoms. Although there were two medical visits identified in the 2000 record of chronic back pain since service, neither report was supported by objective evidence of record to show a chronic back condition resulting from service. Although there was one medical visit identified in the 2005 record which noted chronic back pain since service, that report was not supported by objective evidence of record to show a chronic back condition resulting from service. In contrast, multiple records from service reveal that the Veteran had responded NO for questions regarding history of recurrent back pain, neuritis, paralysis and lameness and for history of arthritis, rheumatism, and bursitis. The record showed that the Veteran had participated in heavy exertional activities including martial arts training after service, prior to the October 2002 X-ray of “early spondylosis.” Additionally, the record revealed that the Veteran had been involved in two motor vehicle accidents (March 2002 and August 2009), had sustained back injury while working out for a contest with a blackbelt martial arts program in August 2002, and sustained back injury in September 2002 when he performed a tornado kick in martial arts and experienced a sharp shooting pain in the left side of his back. These events occurred prior to the October 2002 X-ray reported as “early spondylosis.” The examiner thus found that the Veteran had multiple back injuries after service. Given the evidence of the level of training (black belt) the Veteran had completed, his post-service martial arts activities were the most likely etiology for the reported radiographic findings in 2002 as well as his current back condition. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds Dr. Bash’s opinion is less probative than the VA examiner’s opinion. As noted above, the Board has found that the Veteran’s report of chronic back pain since the 1983 typhoon incident is not credible, which was one of the bases for his opinion. Furthermore, Dr. Bash found that the typhoon injury was akin to a motor vehicle accident, but does not appear to have considered that the Veteran had two motor vehicle accidents after his retirement from Reserve service. Furthermore, Dr. Bash does not consider the Veteran’s other post-service activities or injuries to the back, including those regarding blackbelt martial arts training. The VA examiner thus appears to have a provided a more complete review of the medical evidence and provided a more complete explanation as to how he reached his conclusion. Consequently, the Board gives more probative weight to the November 2016 VA examiner’s opinion. As the preponderance of the probative evidence is against the claim, the benefit of the doubt rule does not apply. The Veteran’s claim for service connection for a thoracolumbar spine disorder is denied. REASONS FOR REMAND The claims for service connection for: (1) a cervical spine disorder, (2) right and left shoulder disorders, (3) right and left elbow disorders, and the claim for an increased rating for: (4) an initial, compensable disability rating prior to September 1, 2015, and rating higher than 10 percent thereafter, for a left foot disability, to include residuals of left foot chip fracture with mild degenerative arthritis are remanded. For the service connection claims, the Board cannot make a fully-informed decision on the issues because no VA examiner has opined whether they developed as claimed, from injury during a typhoon in the early 1980s. The Veteran submitted a November 2014 private opinion by Dr. C. Bash. At that time, Dr. Bash reported that the Veteran had degenerative changes of the right and left elbows and right and left shoulders, as shown by X-rays. The VA and private medical records do not document any diagnosis of either the elbows or shoulders during the appeal period or indicate that the Veteran ever received X-rays of such areas. Additionally, as Dr. Bash did not physically examine the Veteran for those disorders (as indicated in his medical report), the record is unclear as to where such X-rays would have been obtained. The Board thus finds that VA examination is necessary to determine whether the Veteran has current disorders of either elbow or shoulder that are etiologically due to service. As to the cervical spine disorder claim, there is X-ray evidence of a cervical spine disorder, from October 2002 requested by Grady Chiropractic. In November 2014, Dr. Bash reported that such disorders “are due to his auto accident trauma that the patient had during military service.” Dr. Bash subsequently indicated that “[t]yphoons accidents are known to cause multi-trauma with injuries in several body regions simultaneously.” The Board finds that such opinion is internally contradictory and that an adequate medical opinion is necessary as a VA medical opinion has not been obtained. For the residuals of left foot chip fracture with mild degenerative arthritis increased rating claim, following the last VA examination in September 2015, the Veteran submitted a private April 2016 medical opinion and DBQ from Dr. Bash. Dr. Bash found that the Veteran had pes planus and a left ankle disorder as part of the left foot disability. The September 2015 VA examiner did not find pes planus and did not evaluate it, and the left ankle has not been considered. A new VA examination is necessary to determine the residuals of the left foot chip fracture. As this matter is again being remanded, the Board will again request records for ongoing left foot treatment at Kaiser Permanente, chiropractor, and any other pertinent private medical provider. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for Kaiser Permanente, chiropractor, and any other relevant private medical provider. Make two requests for the authorized records from noted facilities, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any (a) right and/or left elbow disorder and/or (b) right and/or left shoulder disorder. The claims file should be reviewed. The examiner is asked to opine whether it is at least as likely as not related to an in-service injury, event, or disease, including reported wind injury during a typhoon. The examiner should note consideration of evidence of record, including the November 2014 opinion of Dr. Bash and private medical records. The examiner is asked to provide a detailed rationale for any opinions provided. 3. Obtain a VA medical opinion as to the claimed cervical spine disorder by an appropriate clinician to determine the nature and etiology of any cervical spine disorder. If a VA examination is deemed warranted one should be obtained. The claims file should be reviewed. The VA medical opinion provider is asked to opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the 1983 typhoon related wind injury. The examiner should note consideration of evidence of record, including the November 2014 opinion of Dr. Bash and private medical records, such as the October 2002 X-ray report regarding the cervical spine from Grady Chiropractic. The examiner is asked to provide a detailed rationale for any opinions provided. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of left foot chip fracture with mild degenerative arthritis. The claims file should be reviewed. The examiner should also clarify the Veteran’s diagnoses and determine which ones are part of his service-connected residuals of left foot chip fracture with mild degenerative arthritis, to specifically include determining whether the Veteran has pes planus, plantar fasciitis, and/or an ankle disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, and the severity of any foot impairment. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of it on any occupational functioning and activities of daily living. (Continued on the next page) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lindio