Citation Nr: 21063584 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 10-27 811 DATE: October 14, 2021 REMANDED Entitlement to service connection for a cervical/lumbar spine disability, to include as secondary to a left shoulder disability is remanded. REASONS FOR REMAND The Veteran had active service from January 1956 to June 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has an extensive procedural history. In November 2013, the Board denied service connection for a chronic cervical/lumbar spine disability, as well as a left shoulder disability which was also on appeal. The November 2013 decision was vacated by a March 2015 Memorandum Decision issued by the U.S. Court of Appeals for Veterans Claims (Court) which directed that the Board remand the claims to obtain adequate medical opinions. After remanding the claims in July 2015, the Board, again, denied service connection for the left shoulder and cervical/lumbar spine disabilities. See June 2017 Board decision. The Veteran appealed the June 2017 decision to the Court, and in January 2019, the Court issued an Order that granted a Joint Motion for Remand (JMR) which vacated the June 2017 decision and essentially directed that the claims be remanded for compliance with the directives of the prior July 2015 Board remand. After remanding the claims in July 2019, the Board issued a decision in January 2021 which denied service connection for the left shoulder disability but remanded the cervical/lumbar spine claim to, again, obtain an adequate medical opinion. An additional VA opinion was obtained in February 2021. The Board found that the February 2021 opinion was inadequate because it was not responsive to the Board's previous directives. In the March 2015 Memorandum Decision, the Court found that the VA opinions of record were inadequate. With respect to the cervical spine and left shoulder disabilities, the Court stated that the examiner failed to adequately consider the Veteran's medical history, specifically the severity of his in-service left shoulder condition. In this regard, the Court noted that the examiner did not address the evidence of joint pain, limitation of motion, receiving multiple injections, and being hospitalized for two months during his last year of service. The Court also stated that the VA examiner did not adequately explain the rationale that aging and occupational or activity factors were the more likely cause of the Veteran's current spinal disabilities. See April 2013 VA opinion. With respect to the lumbar spine, the Court, in pertinent part, stated the examiner failed to adequately consider the Veteran's medical history, as she did not address treatment records dated from 2005 to 2007 that showed lumbar spine complaints. See June 2013VA opinion. As noted, following the March 2015 Memorandum Decision, the Board remanded the claims to obtain adequate medical opinions. Indeed, in both the July 2017 and the January 2021 remand, the Board directed the examiner to (1) consider the in-service complaints and findings of joint pain and limitation of motion, (2) include a discussion of the specific occupational or activity factors attributed the particular disability(ies) and describe how the aging factor was weighed against other factors, if deemed relevant, and (3) address treatment records from 2005 to 2007 showing lumbar spine symptoms. In the February 2021 opinion, the VA examiner noted that the Veteran had more than 61 years of occupational and/or other activity factors prior to and after his 3.5 years of active service, but the examination report lacks any discussion of the specific occupational or activity factors to which the examiner attributed the Veteran's wear and tear, which the Court has previously stated renders the opinion inadequate. See March 2015 Memorandum Decision, p. 4. The February 2021 VA examiner also discussed how disc degeneration can be caused by wear and tear with aging, but she did not otherwise discuss how she weighed the aging factor amongst the other relevant factors in this case, which the Court also indicated would render an opinion inadequate. See Id. In May 2021 the Board remanded this appeal for more development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Entitlement to service connection for a cervical/lumbar spine disability, to include as secondary to a left shoulder disability is remanded. The Veteran contends that his cervical/lumbar spine disability, to include as secondary to a left shoulder disability is related to active service. Specifically, the Veteran contends that a heavy engine fell on his left shoulder (which necessitated a month-long hospitalization) and he continued to suffer from neck and left shoulder pain after service. See June 2015 Appellant Brief. The Veteran contends that he tried contacting the VA for assistance after service, but he was told that he did not exist within the system and that his records were burnt in a fire. After the Veteran was able to produce his DD214, he was finally found in the system. See September 2020 Statement in Support of Claim. In a September 2021 correspondence, the Veteran stated that his records from St. Petersburg Florida are missing from his records and he was told they were burned in a fire. The Board finds that because VA had difficulty finding the Veteran in the system at all, that VA must make another attempt to determine if these records exist. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA medical opinion for the Veteran's cervical/back disabilities. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In the June 2021 opinion, the VA examiner opined that the Veteran's claimed cervical or lumbar disability was less likely as not had its onset during service or was related to an in-service left shoulder injury. The examiners continue to use the absence of objective evidence against the Veteran without discussing the Veteran's lay testimony. The examiners discuss that age alone may cause degenerative changes in the Veteran's spine, and that the "wear and tear" during service was an insignificant amount of time in the Veteran's life, as he was only in service for 3.5 years. The examiners also discuss that the Veteran's work injury that occurred in 2008 may be the cause of the Veteran's current symptoms. However, the examiners do not reconcile the fact that the Veteran had symptoms of back pain prior to the work injury. The examiners speculate that the Veteran could have hurt his back at work prior to the worker's compensation claim, but that is only supposition. In addition, the examiners do not acknowledge that the Veteran's contention that he could not receive treatment from the VA because they could not find him in the system. The examiners note that there is evidence that the Veteran received care for his shoulder during service, but they do not discuss that the Veteran's assertion that 6 months after the incident (where he was pinned by a heavy engine), he started having symptoms of cervical pain. While there are no service treatment records indicating that the Veteran received treatment for his neck or back during service, the examiner may not just cite that there is an absence of objective evidence. Instead, the examiner must address the Veteran's lay testimony that he tried to receive treatment by the VA but was denied because he was not in the system, and that the Veteran contends that he sustained a cervical/lumbar spine injury when he was pinned. The Board notes that, the January 2021 Board decision denied the Veteran's claim for service connection for a left shoulder disability. However, the Board finds that the examiners have not adequately addressed the Court's concerns, or the Board's remand directives, and thus a remand is necessary. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records including but not limited to St. Petersburg, Florida and associate them with the evidence of record before the Board. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Then, obtain an addendum opinion from an appropriate clinician. The clinician must be provided with and review the entire claims file, to include a copy of this remand. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should opine: (a.) Whether the Veteran's cervical/lumbar spine disability is at least as likely as not (50 percent or greater probability) related to his military service including the in-service incident when a heavy engine fell on his left shoulder which necessitated a month-long hospitalization. (b.) The examiner must note and address the following: i. The Veteran contends that he had cervical pain 6 months after the incident where an engine fell on him, and he was pinned. ii. The Veteran contends he has continued to suffer from neck pain since service. iii. The Veteran contends he was unable to receive treatment from VA because he was not in the system, and all of his records were destroyed by fire. iv. Prior to the Veteran's worker's compensation back injury, the Veteran was treated for back pain. The examiner should discuss the first documented evidence of neck, low back, or cervical/lumbar spine pain or problems and describe the relationship of these treatment records to the Veteran's current condition. See e.g., private treatment records dated December 2003, August 2004, February 2005, and February 2006. v. Describe how age is weighed against other factors that may be relevant to the Veteran's current condition. vi. What if any occupational, activity factors are deemed relevant to the current nature of the Veteran's cervical or lumbar spine disability. Describe how each specific occupational or activity factor is weighed against other factors that may be relevant to the Veteran's current condition. vii. The examiner should note and discuss the post-service medical evidence. The examiner should discuss the first documented evidence of neck, low back, or cervical/lumbar spine pain or problems and describe the relationship of these treatment records to the Veteran's current condition. See e.g., private treatment records dated December 2003, August 2004, February 2005, and February 2006. viii. The examiner MUST also consider the lay evidence of record. If there is any medical reason to accept or reject the Veteran's report regarding the onset and progression of his cervical and lumbar spine disability, this MUST be noted and explained. 3. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. 4. The AOJ must review this opinion to ensure it is adequate and complies with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 5. Then, the Veteran's claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.