Citation Nr: 21063168 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 19-23 693 DATE: October 13, 2021 REMANDED Entitlement to service connection for a neck disability, to include degenerative arthritis, spina bifida, and scoliosis of the cervical spine is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from May 1961 until his honorable discharge in June 1961. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision of the Regional Office of the Department of Veterans Affairs (VA). In October 2019, the Board denied service connection for a neck disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted a Joint Motion for Remand (JMR) which vacated the October 2019 Board decision and remanded it back to the Board for further development. In June 2021, the Board remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to obtain a new VA examination. 1. Entitlement to service connection for a neck disability, to include degenerative arthritis, spina bifida, and scoliosis of the cervical spine. In the current appeal, the Veteran contends that his neck disability, which includes degenerative arthritis, spina bifida, and scoliosis of the cervical spine, is due to his active service. In June 2018, he was afforded a VA examination to assess his neck disability. The examiner confirmed that the Veteran has a diagnosis of degenerative arthritis, spina bifida, and scoliosis of his cervical spine but concluded that these disorders were less likely than not incurred in, or caused by, his active service. The examiner also found that the Veteran's spina bifida and scoliosis pre-existed service and were not aggravated by his service. The examiner based his conclusions on the lack of evidence in the service treatment records (STRs) indicating there was any permanent aggravation of the pre-existing neck condition. The examiner explained that, while the Veteran complained of neck pain in service, such symptoms were not considered severe enough to require any form of treatment and did not cause any permanent disability, only temporary discomfort. This examination was deemed inadequate, and the claim was remanded for a new VA examination. Unfortunately, that examination, conducted in July 2021, is also inadequate. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Furthermore, the Board may not make a medical determination without relying on independent medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The June 2021 VA examination failed to address whether his spina bifida and scoliosis of the cervical spine were aggravated by his service. See § 38 C.F.R. § 3.306. The examiner addressed these claims on a direct basis but failed to provide an appropriate opinion on aggravation. As a result, the claim must be remanded for an appropriate opinion on aggravation with an accompanying rationale. The prior examiner did not find that the degenerative arthritis pre-existed service and the Veteran has not asserted as much. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the Veteran's (a) spina bifida and (b) scoliosis from a VA examiner. The entire claims file must be made available to and reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that the (a) spina bifida and (b) scoliosis were aggravated by active service. The examiner must specifically address the following: a. The Veteran's in-service complaints of neck pain and subsequent hospitalization, which are documented in his STRs. b. Whether the disabilities were permanently aggravated beyond their natural progression by service. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A clear rationale for all requested opinions shall be provided. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why. 2. After, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.