Citation Nr: 21063287 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 20-14 717 DATE: October 13, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to a rating in excess of 70 percent for the service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 1946 to April 1948 and in the United States Air Force from November 1949 to October 16, 1953 and from October 21, 1953 to November 1960. His awards include the Purple Heart Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Board remanded the Veteran's claims. During remand status, a July 2021 rating decision granted service connection for hypertension and service connection for bilateral hearing loss. This constitutes a full award of the benefits sought on appeal. As such, there is no case or controversy for the Board to adjudicate with respect to these matters. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). See also Harper v. Wilkie, 30 Vet. App. 345 (2018). 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to a rating in excess of 70 percent for PTSD. 3. Entitlement to SMC based on the need for aid and attendance. Issues 1 -3: VA medical records show that additional treatment records, including private and VA, have been scanned into VistA. While some records appear to pertain to treatment for the Veteran's service-connected hypertension, others are from St. George Regional Hospital for emergency care as well as from "IHC Homecare Provider," and it is unclear for which disabilities the Veteran was treated at these facilities. See CAPRI (July 2021). These records are not associated with the claims file. Therefore, a remand is required to allow VA to obtain these records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Issue 1: Service connection for a cervical spine disability The Veteran contends that his cervical spine disability resulted from a documented May 1953 in-service incident wherein he sustained an abrasion on his upper lip by a flying empty cartridge and for which he was awarded the Purple Heart Medal for his wounds received while serving in action against an enemy of the United States. See VA 21-4138 Statement In Support of Claim (September 2018). The Veteran also asserted that throughout the years since discharge he received treatment for his neck from chiropractors, acupuncturists, orthopedics and other professionals. See VA 21-4138 Statement In Support of Claim (September 2010). Further, the Veteran, via his representative, argues that, because arthritis takes several years to present, the in-service neck injury is the precipitating injury that now presents with degenerative arthritis. See Appellate Brief (September 2021). In September 2020, the Board remanded the Veteran's claim. The Board finds that there has not been substantial compliance with its prior remand. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Although a VA medical examination and opinion were obtained in July 2021, the medical opinion is inadequate as it did not fully answer the Board's questions. Initially, the Board notes that, where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154(b). The combat rules not only reduce the evidentiary burden for establishing in-service disease or injury, but may also assist a veteran in showing incurrence of the disability in service. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). Service treatment records (STRs) show that, at the time of his first enlistment in June 1946, his physical examination was normal, and at the time of separation from the first period of active duty in April 1948, he also had a normal physical evaluation. See STR-Medical (January 2015). At enlistment for his second period of active duty, in October 1949, the Veteran's physical was normal. Id. STRs document a May 18, 1953 incident wherein he sustained an abrasion on his upper lip by a flying empty cartridge. Id. An October 1953 separation physical showed normal neck evaluation. Id. At the time the Veteran reenlisted for his third period of active duty, his physical was normal in October 1953. Id. At the time of his separation in November 1960, the Veteran's neck was evaluated as normal. Id. Post service, in December 1964, the Veteran was involved in an automobile accident and subsequently complained of neck pain and pain in the thoracic area, vertebral region. See Medical Treatment Record - Non-Government Facility (October 1976). X-rays revealed no fracture of the cervical spine. Id. An April 1976 private treatment note from Dr. H.C., DC, provides that the Veteran consulted him in December 1968 with complaints of extremely sore neck and arm muscles. See Medical Treatment Record - Non-Government Facility (October 1976). It was noted that he had been thrown from a car landing on his head during the December 1964 automobile accident. Dr. H.C. listed a diagnosis of traumatic cervical and lumbosacral myofascitis. The Veteran received treatment there until 1976, when he was again involved in an automobile accident in March 1976. See Medical Treatment Record - Non-Government Facility (May 1977). June 1977 x-rays findings show degenerative changes at C4-5 level. See Medical Treatment Record - Non-Government Facility (March 2006). Multiple x-rays from 1983 to 2003 showed multilevel degenerative disk and facet changes with mild left-sided neuro-foraminal narrowing at C3-4 and C-5 and mild bilateral narrowing at C5-6; diffuse disk bulging at C3-4 through C6-7 with mild left foraminal stenosis at C3-4, moderate to severe at C4-5 and bilateral stenosis at C5-6 with broad-based herniation in the central and right paracentral region at C6-7. See Medical Treatment Record - Non-Government Facility (September 2003); Medical Treatment Record - Non-Government Facility (March 2006). In May 2017, the Veteran was again involved in an automobile accident and sought treatment with x-ray findings showing "No acute findings of the cervical spine. Multilevel degenerative disease of the cervical spine. Mild spinal canal narrowing at C3-C4 and C6-C7. Multilevel foraminal narrowing throughout the cervical spine, most severe on the left at C-3C4, C4-C5, and C5-C6." See Medical Treatment Record - Non-Government Facility (June 2018). VA examination report, dated in July 2021, reveals that the Veteran was diagnosed with degenerative disc disease of the cervical spine with spondylosis. In the corresponding medical opinion, the examiner found the Veteran's cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The Board finds the July 2021 VA medical opinion is inadequate. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). An adequate medical opinion must be "accurate and fully descriptive," 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran's prior medical history, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, the opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). An adequate medical examination report or opinion must also "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In sum, although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303. The July 2021 VA medical opinion is inadequate, first, because the opinion reflects that the examiner relied on the absence of annotation of cervical spine issues at the time of separation examination in October 1953. See C&P Exam (July 2021). It is noted that certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). While, the examiner detailed three subsequent automobile accidents, he did not address whether the in-service injury was one of the causes of the Veteran's current degenerative disc disease. The Board observes that service connection may still be established if in-service injuries are one of the causes of the Veteran's cervical spine disability, even if it is not the only cause. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001); 38 C.F.R. § 4.2. The July 2021 VA opinion assumed that there can be only one cause of the Veteran's cervical spine disability, and that his in-service injury could not be one of the cases. See, e.g., Taylor v. McDonald, 27 Vet. App. 158, 166 (2014) (faulting the Board, with respect to a claim that a current disability was caused by in-service exposure to Agent Orange, for relying on a medical opinion suggesting that the disability was related to an intervening post-service infection, where the opinion did not discuss the possibility of Agent Orange as a contributory cause). The examiner's opinion shows that he did not entertain the possibility that the Veteran's documented in-service injury was one of the causes even if not the sole cause of his claimed neck problems. Second, the July 2021 VA medical opinion does not answer the questions posed in the Board remand. Specifically, the Board requested an opinion as to whether the Veteran's cervical spine disability arose during service or is otherwise related to service. See BVA Decision (September 2020). In the July 2021 VA medical opinion, the examiner appears to have addressed only the May 1953 in-service injury without considering the Veteran's entire service, including all three periods of active duty. The question of whether the Veteran's cervical spine disability arose during service or is otherwise related to service remains unanswered. See Stegall, supra. Third, the record reflects that the Veteran has reported continuity of cervical spine symptomatology since the in-service 1953 injury. It is noted that the clinician is not required to accept the Veteran's theory that his military service caused his cervical spine disability, or that he had symptoms associated with the disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion(s). If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. In this instance, the examination did not account for Veteran's reports of continuity, particularly given the Veteran's combat service, nor did it conclusively attribute the Veteran's cervical spine disability to a different cause. Next, the opinion is inadequate because it does not reflect a meaningful discussion of the Veteran's lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [the Veteran's] testimony when formulating her opinion renders that opinion inadequate."). In this instance, the opinion's rationale, for the most part, is limited to solely the medical evidence. In this regard, the Board notes that much, if not all, the evidence listed, or referenced, in the opinion is of a medical nature. The examiner even states that "[t]here is not mention of cervical spine issues [on the separation examination in October 1953]." Mere statement that the Veteran's statements were reviewed does not reflect actual consideration of the Veteran's lay reports and instead shows reliance on the absence of medical evidence. Fountain v. McDonald, 27 Vet. App. 258 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231, 239 (2012) (recognizing that the absence of evidence cannot be substantive negative evidence without "a proper foundation... to demonstrate that such silence has a tendency to prove or disprove a relevant fact."). It is noted that the Veteran, as a lay person, is not competent to opine on the etiology of his disability; however, he is competent to report signs and symptoms of his lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the absence of a meaningful discussion of this evidence does not show awareness of seemingly relevant facts and therefore casts doubt on the medical opinion's foundation for the negative linkage opinion. Given the above, the Board may not rely on the VA medical opinion in its present form and, therefore, finds the opinion is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr, 21 Vet. App. 303. Therefore, as the Board has a duty to ensure compliance with the terms of its remand, remand is again required. Stegall, 11 Vet. App. 268. Issues 2: Entitlement to a rating in excess of 70 percent for PTSD The Veteran, including via his representative, has asserted that his PTSD warrants a rating in excess of 70 percent as it causes total occupational and social impairment. See Appellate Brief (April 2020). After careful review of the record the Board finds that remand is necessary for the following reasons. In this case, the record indicates that subsequent to the September 2020 remand, the Veteran underwent a VA examination to evaluate his PTSD. Having reviewed the November 2020 VA examination report, the Board finds it inadequate for evaluation purposes. Barr, Stefl, both supra. Here, the November 2020 VA does not reflect that it was based upon consideration of the Veteran's prior medical history as well as ongoing mental health treatment with a specific provider, with whom the Veteran felt comfortable. For instance, the examination does not address the Veteran's ongoing monthly appointments with one particular provider, Dr. P. M., MD, which, in May 2020, the Veteran reported that prior to these monthly appointments, he had poorly controlled PTSD/depression despite numerous psychiatric medications, and had to go to the emergency room numerous times for panic attacks and other psychiatric issues. The November 2020 VA examination report presents with numerous incongruities severely hindering the Board's ability to adequately evaluate the Veteran's PTSD. To this extent, under the header of "4. Symptoms," the report lists numerous symptoms, but does not list impaired impulse control, such as unprovoked irritability with periods of violence, which is incongruous with the information contained under the header of "3 PTSD Diagnostic Criteria," where the Veteran's symptoms are listed to include irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, hypervigilance and exaggerated startle response. See C&P Exam (November 2020). The symptom of irritability was not a listed symptom under "4. Symptoms." Further, under the header of "4. Symptoms," the examination incongruously provides that the Veteran has no memory problems, but then states that, "Due to the veteran's combined psychiatric and medical problems, he appears less capable of maintaining basic activities of daily living on his own, and his spouse, who attended the exam with the veteran, stated she often has to remind him to maintain hygiene and sometimes has to help him with completing basic self-care tasks." See C&P Exam (November 2020). The December 2019 VA examination, on the other hand, lists fewer symptoms and does not list difficulty in adapting to stressful circumstances, including work or a work like setting as a symptom. See C&P Exam (December 2019). Additionally, the September 2019 VA examination provides that the Veteran "does not have friends he will get together with," while the December 2019 VA examination indicates that he "maintains a few friendships, but rarely engages in a social activity. He sees family members a couple times per month." See C&P Exam (September 2019 and December 2019). As the VA examination report does not address relevant medical findings in the record and presents with internal inconsistencies, the Board finds it inadequate for evaluation purposes, necessitating a remand. Barr, 21 Vet. App. at 311. Issue 3: Entitlement to SMC based on the Veteran's need for the regular aid and attendance of another person. The Veteran seeks SMC based on aid and attendance. He stated that his wife does all the cooking and cleaning for him, puts his socks on, aids him in bath, and walks with him to provide arm support. See VA 21-4138 Statement In Support of Claim (February 2018); Correspondence (May 2020). The Veteran's representative has most recently asserted that the Veteran's disabilities are so incapacitating that he needs SMC at the aid and attendance rate, which has not yet been adequately acknowledged or assessed. See Appellate Brief (September 2021). The Veteran is service-connected for the following disabilities: PTSD (70%); residuals of bilateral foot cold injuries (20% each foot); residuals of bilateral hand cold injuries (10% each hand); hypertension (10%); and bilateral hearing loss (0%). His combined rating is 90 percent, and he has been in receipt of total disability based on individual unemployability since (December 15, 1993). As a preliminary matter, the Board also notes that the Veteran does not allege, and the record does not suggest, that he is vision impaired or blind. Nor does the evidence show that the Veteran is a resident of a nursing home. Given that the Veteran contends that his need for aid and attendance is a result of his PTSD, which is remanded herein, consideration of entitlement to SMC is deferred pending the outcome of the other issue of entitlement to a rating in excess of 70 percent for PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from July 2021 to the Present. Associate copies of all treatment records from VA and private treatment providers that have been scanned into the VistA Imaging system with the Veteran's claims folder. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any cervical spine disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record and interview of the Veteran, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any lumbar spine disability. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The examiner must opine on: (a.) Whether any cervical spine disability is at least as likely as not related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that his current disability is proximately due to or the result of the documented May 1953 incident. In reaching this opinion, the examiner should note that the Veteran's documented in-service incident in May 1953 does not need to be the only cause, but it must be at least as likely as not that it is one of the causes. Explain. (b.) For arthritis of the cervical spine, whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Consider and expressly address the Veteran's lay statements concerning continuity of cervical spine symptomatology. Explain. (c.) Indicate whether there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current cervical spine disability. 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? Explain. (d.) If there is another etiology more likely than not to explain the Veteran's current back disorder, please identify and explain. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.