Citation Nr: 18100717 Decision Date: 04/19/18 Archive Date: 04/19/18 DOCKET NO. 13-24 518 DATE: April 19, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 2 ORDER Entitlement to service connection cervical spine spondylosis, stenosis, disc disease, herniated discs, and neuropathy is granted. FINDING OF FACT Preexisting cervical spine spondylosis was aggravated during the Veteran’s period of active service. CONCLUSION OF LAW The criteria for establishing service connection for cervical spine spondylosis, stenosis, disc disease, herniated discs, and neuropathy have been satisfied. 38 U.S.C. §§ 1110, 1111, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from June 1986 until August 1986, February 1991 to May 1991, October 1998 to March 1999, April 2002 to May 2002, and August 2005 to July 2007. The Veteran had additional service in the Army and Air National Guard of Mississippi. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from November 2011, December 2011, and January 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2018 and a transcript of the proceeding is of record. The issue of entitlement to service connection for degenerative arthritis of the cervical spine was certified to the Board as a claim to reopen the underlying service connection claim on appeal from an August 2015 rating decision. The service connection claim was originally denied in a January 2015 rating decision on the grounds that there was no evidence that the disorder had its onset during the Veteran’s period of active service, or that the preexisting cervical spine disorder was aggravated by the Veteran’s period of service. In this case, the Veteran submitted two private medical opinions a few weeks after the January 2015 rating decision, in which two physicians opined that the Veteran’s preexisting cervical spine disorders were permanently worsened during the Veteran’s period of service. The Board finds that the Veteran submitted new and material evidence within one year of the January 2015 rating decision, so that decision was never final. See 38 C.F.R. § 3.156(b) (2017). The Board will proceed to address the merits of the claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111 (2012); 38 C.F.R. § 3.304(b) (2017). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran’s service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). In this case, the Veteran’s entrance examination from his final period of service is not of record, and a July 2010 notification from the Mississippi National Guard informed VA that the Veteran’s complete STRs were flagged as missing. As the Veteran’s entrance examination has been lost, the presumption of soundness applies. The Veteran seeks entitlement to in- service aggravation of his cervical spine disability. The Veteran has testified that he was in a motor vehicle accident in 2004 in between his periods of active duty. He has testified that the heavy lifting and twisting movements required in his position as an aerospace maintenance craftsman during his period of service from 2005 to 2007 permanently aggravated his cervical spine disorder. VA medical records and the Veteran’s testimony document that he was involved in a motor vehicle accident in March 2004, and radiographs taken at that time showed evidence of mild cervical spondylosis. This occurred prior to the Veteran’s final period of service beginning in August 2005. Although there is no report of medical examination at the beginning or end of the Veteran’s final period of service, it is uncontested that cervical spine spondylosis clearly and unmistakably preexisted service. The remaining question to be resolved is whether the cervical spondylosis was clearly and unmistakably not aggravated during the Veteran’s period of service. The Board finds that the evidence supports that the spondylosis was aggravated during his period of service as a result of the physical activities he undertook as an aerospace maintenance craftsman. The Veteran testified that he experienced neck pain during his final period of service, but did not seek treatment because he was afraid he would be forced out of service for medical reasons and he was close to retirement. MRI studies obtained in 2008 showed significant stenosis and disc protrusion, and by that time the Veteran had developed symptoms of parasthesias. Following separation, the Veteran has worked in a non-strenuous clerical position. In January 2015, a private physician, Dr. PB, provided an opinion that cervical stenosis, cervical spondylosis, and herniated cervical discs were caused by in-service aggravation of the Veteran’s cervical spondylosis. That same month, another private physician, Dr. ER, opined that the Veteran’s cervical disc degeneration was the result of in-service aggravation of the cervical spondylosis. In July 2017, a VA neurologist, Dr. FA, opined that although it was not possible to determine, it was probable that the Veteran’s cervical spondylosis was aggravated by his work during active duty and caused cervical spondylosis, neuropathy, and disc disease. These examiners reviewed the Veteran’s relevant medical records and provided supporting explanations. A May 2017 VA examiner stated that it was more likely than not that the regular work with heavy lifting and maintenance duties over a period of more than a year would cause a progression of his degenerative cervical disease. In sum, the preponderance of the probative evidence of record demonstrates that the diagnosed cervical spine spondylosis, stenosis, herniated discs, disc disease, and neuropathy are the result of the aggravation of cervical spondylosis during the Veteran’s period of active service and entitlement to service connection on the grounds of service aggravation for cervical spine degenerative arthritis is warranted. REMANDED ISSUES The issues of entitlement to service connection for hypertension and allergic rhinitis are remanded to obtain adequate VA examinations. The August 2011 and November 2011 VA examinations of record are based on inaccurate reporting of the facts and fail to address all of the Veteran’s contentions, thus remand is required. As the matter is being remanded, efforts should be undertaken to obtain any outstanding VA or private treatment records. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his hypertension. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion as to whether the preexisting hypertension was clearly and unmistakably not aggravated during the Veteran’s period of service. The examiner must specifically address the following: 1) an October 2003 VA treatment record reporting a diagnosis of hypertension; 2) February 2006 VA treatment records, during the Veteran’s period of active service, showing his blood pressure medication was increased; and 3) the Veteran’s testimony that his hypertension was aggravated during his final period of service as evidenced by the increase in medication in 2006. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his allergic rhinitis. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a) The examiner must provide an opinion regarding whether allergic rhinitis clearly and unmistakably existed prior to service. The Veteran’s STRs are incomplete, so the examiner must elicit a full testimony from the Veteran regarding the onset of his rhinitis symptoms. b) If so, was preexisting allergic rhinitis clearly and unmistakably not aggravated by the Veteran’s period of service? The examiner must specifically address the following: 1) an April 2007 STR documenting the Veteran’s complaints of severe allergies and diagnosing allergic rhinitis; and 2) the Veteran’s testimony that his allergic rhinitis was aggravated during his period of service due to exposure to fumes and gases that caused his eyes to water. c) If allergic rhinitis did not clearly and unmistakably preexist service, is it at least as likely as not (a 50 percent or greater probability) the diagnosed allergic rhinitis had onset in, or was otherwise caused by, the Veteran’s period of service? 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Smith, Associate Counsel