Citation Nr: 18158652 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 10-11 867 DATE: December 17, 2018 REMAND Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a cervical spine condition caused by participation in a VA compensated work therapy (CWT) program is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1971 to December 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In September 2014, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO in New Orleans, Louisiana. A transcript of the proceeding has been associated with the claims file. In November 2014 and in August 2015, the Board remanded the Veteran’s claim for further development. Moreover, in October 2017 an expert medical opinion and an addendum opinion was provided. However, the Board finds that there has not been substantial compliance with its prior remand directives, and this matter is again remanded by the Board. See Stegall v. West, 11 Vet. App. 269 (1998). Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a cervical spine condition caused by participation in a VA compensated work therapy (CWT) program is remanded. The Veteran asserts that he is entitled to compensation for a cervical spine condition due to an injury on October 23, 2007, during his participation in a VA CWT program or similar rehabilitation program. Specifically, he asserts that the injury was due to moving 20 televisions and cabinets as part of his work program duties. 38 U.S.C. § 1151(a)(2) provides for VA compensation for qualifying additional disability (in the same manner as if such additional disability was service-connected) that was not due to a veteran’s own willful misconduct and was proximately caused by (A) the provision of training and rehabilitation services by the Secretary as part of an approved chapter 31 rehabilitation program, or (B) participation in a CWT program under section 1718. See also 38 C.F.R. § 3.361 (2013). To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the CWT program upon which the claim is based to the veteran’s condition after the program has stopped. 38 C.F.R. § 3.361(b) (2013). As noted by the Board in its previous remands, VA records in the claims file clearly reflect that the Veteran was performing duties as part of the VA’s Incentive Therapy program (“IT” program), which is a type of CWT program according to information about these programs publicly available on VA’s website. As the Board set-forth in its November 2014 remand, Social Security Administration (SSA) records indicate a history of a 1982 neck injury in a motor vehicle accident. Additionally, September 1995 private treatment records reflect that the Veteran was in a serious motor vehicle accident and that he was treated for neck pain. The claims file also includes several private radiological reports from September 1995 to January 2000, with a September 1995 MRI report reflecting his cervical spine was normal and an April 1996 CT scan reporting some disc protrusions and spondylosis. A January 1998 MRI showed some spondylosis, a bulging disc, and some bone spurring. A January 2000 CT scan showed osteoarthritic changes. However, after the October 2007 injury, VA treatment records indicate surgical treatment for his neck in 2010. An April 2010 VA neurology record indicates an MRI, which revealed cervical myelopathy worsened by an old spinal cord injury at C4-C5. In this case, the Veteran was provided VA examination in May 2013 with a December 2013 addendum opinion. The examiner opined that he was unable to provide etiological opinion or any baseline of severity because there was no record of the Veteran’s cervical spine condition shortly prior to the October 2007 incident. The examiner also noted (in error) that the first record of complaint was in April 2009 after moving televisions. While the Board acknowledges an April 2009 VA treatment record reflecting the Veteran’s complaints of neck pain due to moving televisions, this was not the first record of complaint, as noted above. Therefore, the Veteran was provided an additional VA examination in December 2013. The VA examiner found that he could not provide any etiological opinion because there was no record or any pre-2007 injury physical. The examiner provided an April 2015 VA addendum medical opinion, and the examiner opined that there was no evidence that the Veteran’s neck condition was aggravated beyond its natural progression in the 2007 CWT incident. However, the Board found that there was no rationale provided, and remanded the matter for clarification. An expert medical opinion was provided in October 2017. The examiner noted a review of the Veteran’s claims file, to include the Veteran’s relevant medical history, and opined that “it is clear that the Veteran had preexisting degenerative cervical spine disease prior to the October 23, 2007 CWT incident.” Moreover, the examiner opined that “[t]here is no clear evidence that the Veteran’s cervical spine disability was aggravated beyond the natural progress of the Veteran’s cervical spine disorder due to the October 23, 2007 CWT incident moving televisions and cabinets.” The examiner explained that “[c]hronic degenerative disease of the cervical spine usually occur in a progressive manner over the course of a lifetime and generally cannot be related to a specific event or short period of time.” The Board then requested clarification, noting that the question is whether it is at least as likely as not that the Veteran’s cervical spine disability was aggravated beyond the natural progress of the cervical spine disorder due to the October 2007 CWT incident moving televisions and cabinets. Therefore, clarification was provided in a December 2017 opinion. The examiner found that prior to the October 2007 CWT program, the Veteran had clinical, radiographic, and EMG findings supporting a diagnosis of moderate, widespread degenerative cervical spine disease with cervical radiculopathy. The examiner opined that it is less likely than not that the Veteran’s cervical spine disability was aggravated beyond the natural progress of the preexisting Veteran’s cervical spine due to the October 2007 CWT incident. While the medical expert provided an opinion, the examiner failed to provide rationale that pertains the Veteran’s specific subjective and medical history. For this reason, the Board must remand the matter once again. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant VA and/or private treatment records. Should such exist, associate them with the electronic claims record. 2. Thereafter, schedule the Veteran for a VA examination of the Veteran’s cervical spine. The examiner is to review the claims file, including a copy of this remand, and opine as to the following: (a) Confirm the nature and severity of the Veteran’s cervical spine disability prior to the October 2007 CWT incident. See October 2017 expert medical opinion finding that prior to the October 2007 CWT program, the Veteran had clinical, radiographic, and EMG findings supporting a diagnosis of moderate, widespread degenerative cervical spine disease with cervical radiculopathy. Any discrepancies with such October 2017 finding should be addressed. (b) Is it at least as likely as not (50-50 probability) that the Veteran’s cervical spine condition was aggravated (beyond the natural progress of the disease) due to the October 2007 incident moving televisions? The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale for the opinions must be provided. If the examiner determines that an opinion or conclusion cannot be made without resort to mere speculation, the clinician should explain why. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. Rationale that pertains to the Veteran’s specific subjective and medical history must be provided. (Continued on the next page)   3. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with an SSOC, and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel