Citation Nr: 20006207 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 18-44 394 DATE: January 24, 2020 REMANDED Service connection for a neck condition. Service connection for a right arm condition. Service connection for a left arm condition.   REASONS FOR REMAND The Veteran served on active duty from February 1985 to December 1993. The case is on appeal from a January 2015 rating decision. 1. Service connection for a neck condition. This issue is remanded to (1) obtain VA medical records, and (2) obtain a new VA opinion. With regard to potentially available VA medical records, the Veteran wrote in a September 2013 statement that she was initially diagnosed at the VA Medical Center (VAMC) in New Orleans. At present, the claims file contains some VA medical records from this facility. For two reasons, it is not clear if those records are complete. First, the available records were submitted by the Veteran. But, it is not clear if she had received and submitted all available records. Second, the available records do not refer to a neck fracture. To this end, there is available an evaluation from November 1994 for complaints of a back injury. This led to x-rays showing healed compression fracture of the thoracic spine (not the cervical spine). It is not clear if this is the consultation to which she was referring. Upon remand, all outstanding medical records from the New Orleans VAMC should be obtained. With regard to the need for a new opinion, the Veteran contends that she was diagnosed with having had a neck fracture. She contends that this arose from a motor vehicle accident (MVA) during service. She wrote in a September 2013 statement that she has had ongoing neck pain ever since the MVA. She previously underwent a VA examination in May 2018. The examiner provided diagnoses of cervical strain and degenerative arthritis, and provided an opinion that they were less likely than not related to service. The examiner reasoned that the Veteran did not have a diagnosis of neck fracture and that she never had a neck fracture. Rather, according to the examiner, she suffered a whiplash injury (acute cervical strain) after the MVA, but the acute symptoms resolved and there was no evidence of chronicity or continuity of care for a neck condition during service or after service until 2014 (which is more than 20 years after release from active duty service). The Board finds that this opinion not entirely sufficient as the examiner expressly relied on an absence of treatment after service, but did not explain why contemporaneous documentation was expected and why its absence was medically significant. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015). Thus, a new opinion is warranted on remand. Aside from the VA examiner’s opinion, a private chiropractor in November 2014 wrote a supporting statement. He noted the Veteran’s complaints of chronic thoracic spine beginning from the 1992 MVA. He indicated that his work-up included an MRI showing multiple disc protrusions and herniated discs. He opined that the Veteran’s “condition is chronic and persistent.” The Board finds that this opinion insufficient as it is ambiguous. The chiropractor found the condition to be “chronic and persistent,” but this phrase is unclear. It could possibly mean that he found the Veteran to have a chronic and persistent condition arising from the in-service MVA. On the other hand, when reading the statement in context, it appears more likely that the chiropractor meant that the Veteran’s symptoms were long-lasting and not going to resolve despite treatment. This latter interpretation is more likely as the chiropractor went on to note that the Veteran “has made exceptional progress here, [but] it is clearly evident that this will be a life-long battle for her.” Thus, the Board does not find this to be a persuasive opinion on the nexus question. 2. Service connection for a right arm condition. 3. Service connection for a left arm condition. The Board finds that issues 2-3 must also be remanded for a new opinion. In her September 2018 VA form 9, the Veteran wrote that she had left and right arm numbness related to her neck injury during service. She likewise explained at a November 2017 DRO hearing, that she had intermittent pain radiating down both arms after her neck pain started. Hr’g Tr. 6-8. The May 2018 VA examiner, who gave the opinion on the neck, opined that because there was no evidence of a diagnosed neck fracture, an opinion about secondary conditions was moot. Contrary to the examiner’s conclusion, the nexus question was not necessarily moot as the evidence also reflects complaints of arm pain radiating from the thoracic spine, which is a separately service-connected disability. For example, an October 1993 STR also recorded complaints of muscle spasms in the lumbar/low thoracic area radiating to the shoulders. Likewise, a May 2014 medical record indicates complaints of mid-upper back pain that radiated to her bilateral arms. This evidence indicates that her complaints may be secondary to her service-connected thoracolumbar strain and lumbar degenerative disc disease (claimed as thoracic/lumbar pain). An opinion has not been given on this question; thus, remand for a new opinion is warranted. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, including those from the New Orleans VAMC and as early as 1994. 2. Obtain an opinion from an appropriate clinician regarding the Veteran’s neck condition. The examiner is asked to address whether the Veteran’s neck condition at least as likely as not (1) began during active service, (2) manifested within one-year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is otherwise related to service. In doing so, the examiner should address whether the current condition is the type that might be expected to have resulted from the whiplash injury during service. In providing an opinion, the examiner is asked to consider the statements from the Veteran indicating that symptoms, such as intermittent neck pain, started during service. The examiner is asked to explain why her statements make it more or less likely that a current neck condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of her symptoms during and after service may be inaccurate or not medically supported as the onset or cause of her current neck condition. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 3. Obtain an opinion from an appropriate clinician regarding the Veteran’s right and left arm conditions. The examiner is asked to address whether a current condition is at least as likely as not caused by, or aggravated by, service-connected lumbar spine condition. Aggravation is an increase in severity beyond the natural progress of the disease. The examiner should specifically address the complaints pain radiating to the shoulders from the thoracic spine. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.