Citation Nr: 21062248 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-40 408 DATE: October 6, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1973 to December 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2015 Regional Office (RO) rating decision. In that decision, the RO denied service connection for a neck condition, claimed as cervical spine damage. In September 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. In December 2020, the Board remanded the case for additional development of the record, to include obtaining outstanding VA and private treatment records, as well as a VA addendum opinion and VA examination, if deemed necessary. 1. Entitlement to service connection for a cervical spine disability The Veteran contends that his cervical spine disability is related to a motor vehicle accident (MVA) during his active service. Additionally, he believes that his in-service headaches may be related to his cervical spine disability. In an August 2021 appellate brief, the Veteran, through his representative, asserts that his cervical spine disability occurred during the MVA and continued to worsen over time until it was detected in an April 22, 2013 MRI. Based on the evidence of record, it remains unclear whether the Veteran's cervical spine disability had its onset in service or is otherwise related to active service, to include as related to the May 1987 MVA and resulting injuries. Service treatment records (STRs) show that the Veteran was involved in a MVA in May 1987 and received treatment for related injuries. During the September 2020 hearing, the Veteran testified that his neck hurt after his MVA during service, in which he sustained multiple injuries, but that everything else hurt more. The Veteran further testified that he started to have headaches in service but was just told to take Aspirin, and that after service he never really paid attention to his neck until he was notified that he had cervical spine damage that appeared to be quite old. Previously, the Veteran asserted in a March 2016 statement that any MVA, especially a head-on collision that occurs on a highway, is very likely to cause neck injuries, and that after the MVA, he began experiencing migraine headaches, which he reported during and after service. He stated that he has been told by VA and civilian doctors that his headaches have been and most likely still are the result of a "neck trauma." He stated that his long-term complaints related to his neck and headaches are one and the same, resulting from the same May 1987 MVA and requested that his claims be consolidated. In a February 2021 rating decision, the RO granted service connection for traumatic brain injury (TBI) and for migraine headaches, both effective as of November 30, 2020. In December 2020, the Board found that neither a November 2015 VA opinion nor a June 2016 private medical opinion was sufficient to serve as the basis for a decision on this issue. The VA opinion was based solely on the lack of documentation of a cervical spine injury during service; and, the private opinion indicated only that "it is quite possible" that the Veteran's cervical spine changes are associated with the 1987 MVA, without any rationale for the opinion. As the Veteran's September 2020 hearing testimony was not yet available, the Board remanded the claim to obtain a VA addendum opinion addressing the Veteran's testimony regarding potential TBI residuals or headaches, and to determine whether the Veteran's consistent complaints of headaches since the 1987 MVA were symptoms related to a cervical spine disability. Accordingly, a VA addendum opinion was obtained in February 2021. However, the February 2021 VA addendum opinion is inadequate. The examiner did not adequately address the Board's remand directives; accordingly, the case must be remanded again. The VA examiner copied her previous opinion to the addendum, stated that she had nothing to add to it, and asserted again that the Veteran's cervical spine disability should not be service connected because there is nothing in service records that mentions his neck. The examiner stated that she was "not addressing any type of headaches as this was not asked in 2015 and is a new claim" and that the January 2021 VA examiner for headaches should be asked. Notably, however, that the question was not whether the TBI/headaches were service connected, but rather, whether it is possible that a cervical spine disability could be related to the Veteran's TBI/headaches. The VA examiner did not address this question. Based on the above, the matter must be remanded for substantial compliance with the previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, a remand is warranted to obtain a new opinion to determine whether the Veteran's claimed disability is related to service. In addition, now that the Veteran's TBI and headaches are service-connected, there remains a question of whether the Veteran's cervical spine disability is caused or aggravated by his service-connected TBI and headaches. The matter is REMANDED for the following action: 1. Obtain an addendum opinion for the Veteran's cervical spine disability. The examiner must review the claims file, including the Veteran's testimony in the September 2020 Board hearing transcript. 2. The examiner must provide a medical opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current cervical spine disability began in or is otherwise related to disease or injury in service, to include as due to the 1987 motor vehicle accident (MVA). 3. The examiner must provide a medical opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current cervical spine disability is caused or aggravated by a service-connected disability, to include traumatic brain injury (TBI) and headaches. (a.) The examiner must specifically address whether the Veteran's consistent complaints of headaches since the 1987 MVA were symptoms related to a cervical spine disability. In other words, the examiner is requested to address whether the Veteran's headaches since the MVA are, as likely as not, a manifestation of an injury to the cervical spine. (b.) In providing the requested opinions, the examiner should consider the Veteran's reports that when his neck pain flares up, he gets a migraine simultaneously with the neck pain. The examiner should also consider the severity of the MVA based on photographs of the damaged vehicle submitted by the Veteran, as well as his testimony which includes his statement that he suffered multiple injuries in the accident and he was only treated for the most severe at that time. (c.) If the examiner cannot provide the requested opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided. The examiner must provide a clear rationale for any conclusions expressed. If the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. In providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported 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 disabilities, 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? (Continued on the next page) The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Labi, 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.