Citation Nr: 21061421 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-32 664 DATE: October 4, 2021 REMANDED Service connection for a cervical spine disability is remanded. Service connection for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1978 to May 1983. The claims come to the Board of Veterans' Appeals (Board) from a September 2014 rating decision which denied service connection for a cervical spine disability because new and material evidence had not been received and denied service connection for a left shoulder disability. In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In September 2020 and April 2021, the Board remanded the claims for further development. Service connection for a cervical spine disability is remanded. The Veteran contends that service connection is warranted for a cervical spine disability. The Veteran asserts that this disability began during service, to include as due to using crutches and the rigors of service. The Veteran also asserts that this disability is secondary to service-connected lumbar spine disability. Following the April 2021 remand, the June 2021 VA examiner opined that it was less likely than not that the Veteran's cervical spine disability was related to service or secondary to a service-connected disability. The examiner stated that the etiology of the Veteran's current disability was overuse from sports and post-service activities and aggravated by multiple post-service motor vehicle accidents and aging. The examiner stated that there was limited objective medical evidence to show onset and chronicity of a cervical spine disability in relation to service. While the examiner noted a January 2011 x-ray of the cervical spine showing severe discogenic degenerative disease at C4-6, the examiner stated that the initial neck complaint was found after an April 2011 motor vehicle accident, which was more than 25 years after service. The Board finds that remand is required because the June 2021 VA examiner's opinions are inadequate. The negative nexus and secondary service connection opinions are premised on the erroneous factual premise that the initial neck complaint was related to the April 2011 motor vehicle accident. In fact, the VA examiner noted the January 2011 x-ray of the cervical spine, indicating that a cervical spine disability existed prior to the April 2011 accident. The Board also notes that the VA examiner relied too heavily on the medical evidence regarding onset and chronicity and failed to make an independent determination. The agency of original jurisdiction (AOJ) should also provide the Veteran with a VA Form 21-4142 to obtain relevant private treatment records. The Veteran's VA treatment records mentioned private treatment from Dr. K. at Wenonah Medical Center prior to June 2009. In light of the January 2011 x-ray findings, these private treatment records might be relevant to the Veteran's claim. Service connection for a left shoulder disability is remanded. The Veteran contends that service connection is warranted for a left shoulder disability. The Veteran asserts that this disability began during service, to include as due to using crutches and the rigors of service. The Veteran also asserts that this disability is secondary to service-connected right wrist and lumbar spine disabilities. Following the April 2021 remand, the June 2021 VA examiner opined that it was less likely than not that the Veteran's left shoulder disability was related to service or secondary to a service-connected disability. The examiner stated that the etiology of the Veteran's current disability was overuse from sports and post-service activities and aggravated by multiple post-service motor vehicle accidents. The examiner stated that there was limited objective medical evidence to show onset and chronicity of a left shoulder disability in relation to service. The Board finds that remand is required because the June 2021 VA examiner's opinions are inadequate. The April 2021 Board remand directed the examiner to consider and discuss the October 2020 VA examiner's opinion that being on crutches would more likely affect the Veteran's shoulders than his neck. The June 2021 VA examiner, however, did not consider and discuss this opinion. The Board also notes that the VA examiner relied too heavily on the medical evidence regarding onset and chronicity and failed to make an independent determination. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from September 2020 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment for a cervical spine disability or left shoulder disability, to include Dr. K. from Wenonah Medical Center. Make two requests for the authorized records from each facility, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination for a cervical spine disability. The examiner must review the claims file and provide a rationale for all opinions. The examiner is asked to provide a response to the following: Is it at least as likely as not that any cervical spine disability was incurred in service or is otherwise related to service, to include the Veteran's lengthy period of time on crutches or to the rigors of service? Is it at least as likely as not that any cervical spine disability is proximately due to service-connected lumbar spine disability? Was any cervical spine disability at least as likely as not aggravated (worsened beyond the natural course) by service-connected lumbar spine disability? The examiner is advised that a negative opinion may not be based solely on the absence of treatment during or after service and that the examiner must provide a proper foundation explaining why the absence of evidence is relevant in determining whether the disability is related to service. 4. Schedule the Veteran for a VA examination for a left shoulder disability. The examiner must review the claims file and provide a rationale for all opinions. The examiner is asked to provide a response to the following: Is it at least as likely as not that any left shoulder disability was incurred in service or is otherwise related to service, to include the Veteran's lengthy period of time on crutches or to the rigors of service? The examiner should consider and discuss the statement in the October 2020 VA cervical spine opinion that "[b]eing on crutches would more than likely [affect] his shoulders...rather than affect his neck." Is it at least as likely as not that any left shoulder disability is proximately due to service-connected right wrist or lumbar spine disabilities? Was any left shoulder disability at least as likely as not aggravated (worsened beyond the natural course) by service-connected right wrist or lumbar spine disabilities? The examiner is advised that a negative opinion may not be based solely on the absence of treatment during or after service and that the examiner must provide a proper foundation explaining why the absence of evidence is relevant in determining whether the disability is related to service. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, 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.