Citation Nr: 20021934 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 12-27 763 DATE: March 30, 2020 REMANDED Entitlement to service connection for a cervical spine condition (previously adjudicated as intervertebral disc syndrome [IVDS] with degenerative arthritis of the cervical spine [neck disability]), to include as secondary to service-connected IVDS with degenerative arthritis of the thoracic spine, is remanded. REASONS FOR REMAND The Veteran had qualifying service from May 1983 to May 2003. In September 2015 and August 2016, the Board remanded for further development. In October 2017, the Board denied the claim. In an April 2018 Joint Motion for Partial Remand, the U.S. Court of Appeals for Veterans Claims (CAVC) vacated the October 2017 Board decision regarding this issue and remanded it for further development and adjudication. In September 2018, the Board denied the claim again. In an August 2019 Joint Motion for Remand (JMR), CAVC vacated the September 2018 Board decision and remanded this issue for further development and adjudication. 1. Service Connection for a Cervical Spine Condition In the August 2019 JMR, CAVC found that the Board erred by: (a) offering an inadequate statement of reasons or bases supporting its determination that the Veteran’s statements were not credible; (b) failing to adequately address the Veteran’s theory that his neck disability was caused or aggravated by his service-connected thoracolumbar spine disability; and (c) relying upon inadequate VA examinations (December 2016 opinion with January 2017 addendum) concerning the Veteran’s neck disability claim. Additionally, CAVC specified that, upon remand, the examiner must address the Veteran’s lay statements and in- and post-service treatment records as they relate to theories of service connection arising from his job duties, his in-service injuries, and continuity of symptomatology. This evidence includes, but is not limited to: (a) the Veteran’s post-service statements and treatment for muscle spasms and back injuries similar to those he experienced in service, including the January 2008 Reston Hospital record indicating a relationship between muscle strain and a reversal of the normal lordotic curve in his neck; and (b) the Veteran’s statements about the connection between his in-service job duties and his injuries on the ground. The examiner cannot rely solely on a lack of objective evidence, i.e., records of medical complaints or treatment, without considering lay statements that may provide the requisite evidence to support a claim for service connection; notably, the most recent examiner erred by relying on the lack of in-service diagnosis and the silence in post-service treatment records prior to 2007. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1 (Fed. Cir. 2006). Further, the examiner must consider that, although the Veteran is not a medical expert, he is competent to report observable symptomatology; notably, the most recent examiner erred by dismissing the Veteran’s statements about the connection between his in-service job duties and his injuries on the ground that he is not a medical expert (neglecting to consider that any competent reports). Buchanan, 451 F.3d at 1336 n.1; Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In sum, to comply with the August 2019 CAVC JMR, the Board must remand to obtain an etiological opinion that considers both direct and secondary service connection, including all the evidence delineated above. The matters are REMANDED for the following action: 1. Examine the etiology of the Veteran’s cervical spine condition by considering both direct and secondary (to service-connected IVDS with degenerative arthritis of the thoracic spine) service connection theories. The examiner must address the Veteran’s lay statements and in- and post-service treatment records as they relate to theories of service connection arising from his job duties, his in-service injuries, and continuity of symptomatology. This evidence includes, but is not limited to: (a) the Veteran’s post-service statements and treatment for muscle spasms and back injuries similar to those he experienced in service, including the January 2008 Reston Hospital record indicating a relationship between muscle strain and a reversal of the normal lordotic curve in his neck; and (b) the Veteran’s statements about the connection between his in-service job duties and his injuries on the ground. The examiner cannot rely solely on a lack of objective evidence, i.e., records of medical complaints or treatment, without considering lay statements that may provide the requisite evidence to support a claim for service connection; notably, the most recent examiner erred by relying on the lack of in-service diagnosis and the silence in post-service treatment records prior to 2007. Barr, 21 Vet. App. 303; Dalton, 21 Vet. App. 23; Buchanan, 451 F.3d 1331. Further, the examiner must consider that, although the Veteran is not a medical expert, he is competent to report observable symptomatology; notably, the most recent examiner erred by dismissing the Veteran’s statements about the connection between his in-service job duties and his injuries on the ground that he is not a medical expert (neglecting to consider that any competent reports). Buchanan, 451 F.3d 1331; Layno, 6 Vet. App. 465; Jandreau, 492 F.3d 1372. 2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.