Citation Nr: 20007587 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 18-18 654 DATE: January 29, 2020 REMANDED Entitlement to service connection for a back condition, to include degenerative disk disease of the cervical and lumbar spine, to include as secondary to cervical strain, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1980 to January 2003, including service in the Southwest Asia Theater of Operations during the Gulf War period. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that, in January 2015, the Veteran filed a claim seeking service connection for a back condition, secondary to his service-connected cervical strain. In the August 2015 rating decision from which this appeal arises, the RO narrowed the Veteran’s claim to degenerative disc disease, lumbar spine with arthritis. It is well settled that when a veteran makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Here, the Veteran has consistently reported symptoms of upper back pain. See January 2015 VA Form 21-4138; April 2016 Notice of Disagreement (NOD); April 2018 VA Form 9. Further, the Veteran’s medical records indicate that he has been diagnosed with degenerative disk disease of the cervical and lumbar spines. See March 2016, Sutton Orthopaedics & Sports Medicine; August 2015 VA Back Conditions Disability Benefits Questionnaire (DBQ). Accordingly, the Board has recharacterized the Veteran’s claims as one for entitlement to service connection for a back condition, to include degenerative disk disease of the cervical and lumbar spine, to include as secondary to cervical strain. Entitlement to service connection for a back condition, to include degenerative disk disease of the cervical and lumbar spine, to include as secondary to cervical strain, is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary for additional development. First, a remand is warranted as the evidence indicates that there may be relevant VA records not associated with the claims file. Specifically, in May 2019, the Veteran asserted that since April 2018 he had been treated at the Newman GA VA Community Based Outpatient Clinic (CBOC) and the Clairmont (Atlanta) VA Medical Center (VAMC), and that he has received ongoing treatment for his back condition by a fee-based specialist. See May 2019 VA Form 21-0820. However, no VA medical records have been associated with the electronic claims file since October 2017. Additionally, there is no indication that any requests for such records have been made. As such, a remand is necessary to ensure that all relevant VA treatment records have been obtained and associated with the electronic claims file. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, a remand is necessary to provide the Veteran with an adequate VA examination. In August 2015, the Veteran underwent VA examinations for his neck and back conditions, in which the examiner opined that the Veteran’s degenerative disk disease of the lumbar spine was less likely than not due to or the result of his service-connected cervical strain. The examiner noted that the Veteran’s degenerative disk disease was consistent with his age, and that typical signs of symptoms of a cervical spinal injury do not extend to the lumbar spine. The examiner did not address direct connection. See August 2015 Neck Conditions DBQ; August 2015 Back Conditions DBQ; August 2015 Medical Opinion DBQ. With respect to the Veteran’s diagnosed degenerative disk disease of the cervical spine, as this opinion does not address such condition, it is inadequate on direct and secondary theories. With respect to the Veteran’s diagnosed degenerative disk disease of the lumbar spine, this opinion is inadequate on direct and secondary theories. First, there is no opinion as to direct service connection, and therefore the opinion cannot be deemed adequate with respect to such. With respect to secondary service connection, the examiner does not address aggravation, and therefore, the opinion cannot be considered adequate to the extent it ignores aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, another examination is necessary to determine the nature and etiology of the Veteran’s back condition(s). In sum, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to obtain the Veteran’s VA records and to obtain a VA opinion regarding the nature and etiology of the Veteran’s back condition(s). Accordingly, the matter is REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file all outstanding VA records from October 2017 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the records and the Veteran informed if any of these records are unable to be secured. 2. After the above has been completed, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any current back condition, to include degenerative disk disease of the cervical and lumbar spine. The examiner must review the entire record, and any indicated studies should be performed. The examiner is asked to: (a.) Obtain the Veteran’s lay in-service and post-service history, including onset of symptomatology and employment. (b.) For each diagnosed back condition, the examiner must provide the following opinions: i. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such back condition had its onset during, or is otherwise related to, the Veteran’s active duty service. ii. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such back condition is caused by the Veteran’s service-connected cervical strain. iii. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such back condition is aggravated (incremental increase) beyond its natural progression by the Veteran’s service-connected cervical strain. 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 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 examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner 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 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.