Citation Nr: 20044518 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 10-18 400 DATE: July 2, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a neck disorder claimed as due to VA medical treatment in June 2007 is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1963 to September 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in June 2016 wherein the Board denied the benefits sought on appeal. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In December 2017, the Court issued a Memorandum Decision that vacated the Board’s decision and remanded the case for readjudication in compliance with directives specified. In August 2018, the Board remanded the claim for additional development. The Veteran asserts that he has an additional neck disability due to a June 2007 VA chiropractic manipulative treatment. In the August 2018 remand, the Board requested that the Agency of Original Jurisdiction (AOJ) obtain the Veteran’s informed consent form and/or any related documentation for the June 2007 VA chiropractic manipulative treatment. The Board also requested that the AOJ obtain a medical opinion addressing whether the Veteran has an additional neck disorder that was caused or aggravated by the VA medical treatment in June 2007. A VA opinion was obtained in October 2019. In the opinion, the VA examiner found that there appeared to be intervertebral disc space narrowing at the C5-C6, C6-C7 levels. At the C5, C6 levels, retrolisthesis of the vertebral bodies was observed. The examiner stated that, “Comparatively a new condition was noted which [was] retrolisthesis after a year from the previous radiologic exam. Which indicates a normal aggravation process as degenerative condition is a continuous process that [may] affect the neighboring supporting tendons or ligaments causing weakness of the joint resulting to slipping movement of the vertebra (Listhesis). Otherwise no other additional disability is established.” In a separate opinion, the examiner opined that the Veteran’s additional neck disorder was not aggravated by the June 2007 treatment. As a rationale, the examiner stated that the Veteran’s current neck pain/disorder is considered a normal process of degeneration as a degenerative condition is a continuous process that may affect the neighboring supporting tendons or ligaments causing weakness of the joint resulting to slipping movement of the vertebrae. The Board finds that the rationale for the October 2019 opinion is inadequate. The rationale did not discuss the Veteran’s lay statements, as requested in the remand order, or address why the examiner believed the Veteran’s neck disorder was a normal process and not related to the June 2007 chiropractic treatment. Therefore, the claim must be remanded for a new opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). In regard to the Board’s request for the AOJ to obtain the Veteran’s informed consent form and/or any related documentation for the June 2007 VA chiropractic manipulative treatment, the AOJ sent the Veteran a letter in May 2019 requesting that he provide the VA with any related documentation. However, it does not appear that the AOJ made any other attempt to obtain a consent form or documentation. As the records relating to the June 2007 procedure are VA records, the AOJ should have attempted to obtain the records, including reviewing Vista Imaging, for any consent forms. Therefore, another attempt must be made to obtain an informed consent form and/or any related documentation. The matters are REMANDED for the following action: 1. Obtain the Veteran’s informed consent form, if any, and/or any related documentation, including documents in Vista Imaging, for the June 2007 VA chiropractic manipulative treatment. Document all requests for information as well as all responses in the claims file. 2. Obtain an addendum opinion from an appropriate clinician to address whether the Veteran has an additional neck disorder that was caused or aggravated by the VA medical treatment in June 2007. The clinician should specifically address the following: (a) Is it at least as likely as not that the proximate cause of the Veteran’s additional neck disorder, identified as retrolisthesis, was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA during the June 2007 VA chiropractic manipulative treatment? In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment, discuss if VA failed to exercise the degree of care that is expected of a reasonable health care provider. The VA clinician should address the Veteran’s January and December 2008 report that he began experiencing increased pain and restricted motion of the neck within a week of his final visit. The clinician must also consider the Veteran’s September 2008 statement and a September 2009 report from chiropractor, E.C., which contain the Veteran’s reports of what occurred during the June 2007 VA treatment. (c) Is it at least as likely as not that the Veteran’s additional neck disability, identified as retrolisthesis, was reasonably foreseeable as an ordinary risk of the during the June 2007 VA chiropractic manipulative treatment that would be disclosed in connection with the informed consent (primary health care provider explains the reasonably foreseeable risks associated with VA treatment or services furnished the Veteran)? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Marenna, 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.