Citation Nr: 21000310 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-25 301 DATE: January 5, 2021 REMANDED Entitlement to service connection for cervical spine degenerative disc disease (DDD), status post anterior cervical diskectomy and fusion C3-6 is remanded. Entitlement to service connection for lumbar spine degenerative joint disease (DJD) and DDD status post L5-S1 fusion is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1987 to May 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified before the undersigned at a travel Board hearing. A transcript of that hearing has been associated with the file and reviewed. The case was previously before the Board in September 2019, at which time the above issues were denied. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In September 2020 the Court granted the Parties’ Joint Motion for Remand (JMR), vacating the Board’s decision which denied these claims and remanded them back to the Board for further development and readjudication. To comply with the terms of the JMR, the Board, in turn, is remanding these claims to the agency of original jurisdiction (AOJ) for action consistent with the JMR. 1. Service connection for cervical spine DDD, status post anterior cervical diskectomy and fusion C3-6 is remanded. 2. Service connection for lumbar spine DJD and DDD status post L5-S1 fusion is remanded. The parties to the JMR found that the Board erred in relying on the October 2013 VA examinations for the cervical and lumbar spine. The Veteran contends that his cervical spine DDD and lumbar spine DJD are due to airborne jumps in-service, including two bad parachute jumps. Personnel records reflect that he was a parachute rigger and Airborne qualified. In his January 2013 VA 21-526 Application for Compensation, the Veteran described making numerous jumps while in service and, as a result, he had continual trauma to his back and neck. He indicated that his pain continued to the present since he was stationed at Ft. Bragg, North Carolina. At his May 2019 Board hearing, he reported that he took ibuprofen and pain medication for his neck and back injuries since service. The October 2013 VA examiner stated that given the evidence, there was much less than fifty percent chance that stressors of parachute jumping were causative and significantly contributed to the lumbar spine and cervical spine disorders. There was also history of twelve years since discharge for any back or spine condition occurring. It was noted that the Veteran had a history of smoking and a significant smoking history is very detrimental to the spine. The Veteran had approximately twenty jumps in less than one and a half years, which is less than one and a half jumps a month on average without problems and likely at the peak of his physical health. The examiner opined that the likelihood of this being causative of his disability is considerably less significant than prolonged employment in physically demanding work, smoking, natural physical makeup, and aging. However, the examiner did not consider the Veteran's lay statements that he first began experiencing cervical and lumbar spine pain during service. When an examiner fails to address a veteran's lay evidence, and the Board fails to find the veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination. See Miller v. Wilkie, 32 Vet. App. 249, 262 (2020). The October 2013 VA examiner also documented that service treatment records and reports of medical history were absent of any history or complaint of back, neck, or spine problems. However, a review of the record shows complaints of low back pain in April 1988. It was noted that he had pain in his back for two weeks. He was assessed with a musculoskeletal pain. He was seen two weeks later, also in April 1988, for a complaint of lower back pain. The assessment was back muscle pulled. Bases on the above, the Board finds that a new examination is needed to adequately address the etiology of the Veteran’s cervical and lumbar spine disabilities that consider his contentions as well as complaints of low back pain in service. These matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his cervical spine DDD, status post anterior cervical diskectomy and fusion C3-6 and lumbar spine DJD. The examiner is to review the claims file and this Remand. The examiner is asked to provide a response to the following: (a.) Is the Veteran’s cervical spine DDD at least as likely as not related to service, including from his parachute jumps in service and/or his complaints of low back pain in April 1988. ***In so doing, the examiner must discuss the Veteran's lay statements, including his statements from January 2013 application for compensation, July 2015 Form 9, and May 2019 Board hearing in which he detailed having neck pain since service.*** The examiner is also asked to provide a response to the following: (b.) Is the Veteran’s lumbar spine DJD at least as likely as not related to service, including from his parachute jumps in service and/or his complaints of low back pain in April 1988. ***In so doing, the examiner must discuss the Veteran's lay statements, including his statements from January 2013 application for compensation, July 2015 Form 9, and May 2019 Board hearing in which he detailed having back pain since service.*** A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. (CONTINUED ON THE NEXT PAGE)   In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.