Citation Nr: 21062115 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-03 739 DATE: October 6, 2021 REMANDED Entitlement to service connection for degenerative disc disease of the cervical spine, to include as secondary to a service-connected right knee disability or a service-connected lumbar spine disability, is remanded. REASONS FOR REMAND The Veteran served with the U.S. Air Force from April 1974 to April 1978. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A videoconference Board hearing was held in January 2019 before a Veterans Law Judge (VLJ) and a copy of the hearing transcript has been added to the record. In August 2021 correspondence, the Veteran was advised that the VLJ who held his hearing was no longer at the Board and he could request another hearing before a different VLJ. He did not respond. Thus, his hearing request is deemed satisfied. In May 2019, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. The Veteran appointed his current attorney to represent him before VA by filing a completed VA Form 21-22a at the AOJ in September 2021. The Veteran contends that he incurred a cervical spine disability during active service and experienced continuous post-service disability. The Board acknowledges that this claim was remanded previously in May 2019. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). In the May 2019 remand, the Board directed that the AOJ schedule the veteran for examination with an opinion as to whether it was at least as likely as not that the cervical spine disability had its onset in service and whether it was at least as likely as not that the current cervical spine disability was caused or aggravated by a service-connected bilateral knee disability. Following the Board remand, the Veteran was afforded a VA examination in January 2020. The examiner concluded the Veteran's cervical spine disability was less likely as not proximately due to or the result of the right knee. The examiner reasoned that, after reviewing medical literature, there was no medical evidence that the cervical spine disability was proximately due to or the result of arthritis in the right knee. Instead, the examiner noted that cervical spine arthritis is caused by normal wear and tear of aging and post traumatic causes. Further, the examiner noted that the service treatment records were silent for complaints or trauma to the neck. Moreover, the examiner noted the first complaint was not until 30 years after leaving active duty and service connection for the right knee had been in effect since 1977. The Board finds the January 2020 examination inadequate. When VA undertakes to provide a VA examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate. See Barr, 21 Vet. App. 312. Opinions regarding secondary service connection must address both causation and aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Regarding causation, the January 2020 examiner found the cervical spine arthritis was more likely caused by normal wear and tear of aging and post traumatic causes. The examiner reasoned that the Veteran did not complain of a cervical neck disability until 2008 and he had been service connected for the right knee since 1977. The Board notes in this regard that the timing of an initial diagnosis, alone, is not sufficient to eliminate the possibility of a causal connection between two conditions. See Frost v. Shulkin, 29 Vet. App. 131 (2017). Second, the May 2019 remand directed the examiner to opine whether it was at least as likely as not that the Veteran's cervical spine disability had its onset in service. Unfortunately, the January 2020 examiner only provided an opinion regarding secondary service connection. Therefore, remand is required to obtain a medical opinion which complies with the prior remand instructions. The Veteran, through his representative, recently asserted in a June 2021 appellate brief that his cervical spine disability is related to his service-connected disability of osteoarthritis changes of the lumbar spine. The Board notes that an August 2015 VA examination and opinion purported to address this question. The August 2015 clinician concluded the cervical spine disability was less likely than not related to a service-connected condition. The examiner reasoned that the Veteran's cervical spine disability was more likely related to a genetic predisposition as well as the natural aging process. This examiner did not provide an aggravation opinion. Thus, the Board finds the August 2015 opinion also is inadequate for adjudication purposes and, on remand, any opinion should address this matter. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board without complying with the prior remand instructions. Given this error, another remand is required. The matter is REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's cervical spine disability. If possible, this opinion should be provided by a clinician other than the clinicians who provided the August 2015 and January 2020 examinations and opinions. The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion(s). Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a cervical spine disability is related to active service. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a service-connected disability caused or aggravated a cervical spine disability. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each cervical spine disability currently experienced by the Veteran, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a cervical spine disability, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised not to review or rely upon examinations and opinions dated in August 2015 and January 2020 in preparing his or her own opinion(s). 3. Review the medical evidence, once obtained, and determine whether it complies substantially with the terms of this REMAND. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.