Citation Nr: 21063191 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 14-41 799 DATE: October 13, 2021 REMANDED Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for a thoracic spine condition is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1967 to December 1970. He died in October 2020. While this matter was before the U.S. Court of Appeals for Veterans Claims, the Court granted the appellant's motion to be substituted to pursue the Veteran's claims. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Following an August 2019 Board decision denying both claims, the Veteran appealed to the Court, and in November 2020 the Court granted a joint motion for remand for the Board to discuss whether it has jurisdiction to adjudicate the claims in the legacy appeals system in light of the Veteran's May 2018 opt-in to the Rapid Appeals Modernization Program (RAMP). As to this preliminary issue, the Board finds that it does have jurisdiction to decide the present matter in the legacy appeals system. The record reflects that this legacy appeal was activated at the Board on April 7, 2015, and that the Veteran's RAMP opt-in was received by VA on May 17, 2018. Because the appeal had already been activated at the Board, it was not eligible for opt-in to RAMP, and it must be adjudicated in the legacy appeals system. See 38 C.F.R. § 3.2400(c)(1). Turning to the adjudication, the Board finds that remand is needed in order to obtain an etiology opinion. The Veteran filed a claim for service connection for his cervical and thoracic spine conditions, which he contended were linked to a 12-to-14-foot fall from a Navy ship's mast in early 1970. At a May 2019 Board hearing, he testified that after returning from Vietnam he was stationed aboard an old, rusty ship and, for his occupational specialty as a radioman, he had to go up onto an old mast to prepare the antennae system. There was no safety equipment, and on his climb back down, the handle broke away and he fell. He sought treatment for his injuries, and service treatment records from 1970 show that the Veteran was treated for a right-ankle injury (for which he was service-connected at the time of his death). The Veteran testified that when standing in line for a shower after the fall, the servicemember behind him remarked, "with a few expletives," that the Veteran's back was "black and blue and purple and green." The Veteran said that he did not go to sick call and instead self-medicated as it was only several months before his discharge and he had a job interview lined him that he did not want jeopardized. Of record are two opinion statements from physicians. First, in a March 2012 statement, Dr. T.D., after noting the Veteran's description of injuries to his neck, upper back, and right ankle from the fall, opined, "Although I cannot conclusively say 100 percent that [the Veteran']s injuries are directly related, more likely than not these injuries accelerated the cause and played a key role." Second, in a July 2012 opinion, Dr. D.C., who at the time treated the Veteran's neck pain, said, "It is my understanding that while [the Veteran] was active duty service in the US Navy, he slipped and fell greater than 12 feet while descending a ladder, striking the back of his head. In my experience, a traumatic injury such as this can often lead to painful chronic condition, such as cervical and thoracic spondylosis. It is my belief that it is medically probable his traumatic injury was the proximate cause of his current painful condition." The record also includes, however, records of another potentially relevant event that was not discussed by either of the physicians in their statements. A September 1974 Kaiser record related the Veteran was hit by a car in 1964 and that back pain at that time of the record was a "result of 1964 accident"; a February 2005 VA treatment record noted that the Veteran had pain in his neck, with the section for the Veteran's subjective report noting only that he had a "history of going head first through a windshield in past"; and, an October 2008 VA neurology consult recorded that the Veteran had "intermittently had neck pain for many years" and that "[t]here has been no significant trauma or injury that [the Veteran] can account for the current pain other than his work as a postal worker and working all day at a computer. The patient does have a significant past history in that at age 17 he was thrown through a windshield, brief loss of consciousness. He was hospitalized at the time but had no ongoing complaints. The pain as noted did not begin until many, many years after this." Thus, while there is an indication that the Veteran's spine conditions may have been connected to the described in-service fall, because neither of the physicians' statements submitted by the Veteran discussed the 1964 accidentan injury which the Veteran apparently believed severe enough that he attributed it as a possible cause of his spine problemsthe Board needs a medical opinion that considers and discusses all of the evidence. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also McLendon v. Nicholson, 20 Vet. App. 79, 83, 86 (2006) (applying 38 U.S.C. § 5103A(d)); 38 C.F.R. § 3.159(c)(4). Accordingly, the matter is REMANDED for the following action: 1. Obtain an opinion regarding the etiology of the Veteran's cervical and thoracic spine conditions present since his claim (approximately 2011) up until his death. For any cervical or thoracic spine condition, opine whether the condition was at least as likely as not due to the Veteran's in-service 12-to-14-foot fall from a ship's mast. The clinician must consider and discuss the March 2012 and July 2012 statements from the private physicians that "more likely than not [the Veteran's in-service] injuries accelerated the cause and played a key role" in his spine conditions and that "a traumatic injury such as [the Veteran's fall] can often lead to painful chronic condition, such as cervical thoracic spondylosis" and "it is medically probable his traumatic injury was the proximate cause of his [spine] condition." The clinician must also consider and discuss records indicating that the Veteran was hit by a car in 1964, "going head first through a windshield," but that "[h]e was hospitalized at that time but had no ongoing complaints," with no pain "until many, many years after this." Additionally, consider and discuss the Veteran's statements that his back was badly bruised after the fall, and that he chose not to seek treatment at sick call, as he was only several months from discharge and had a civilian job interview lined up that he did not want to jeopardize. 2. After the above development and any other development deemed necessary is completed, readjudicate the appellant's claims. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.