Citation Nr: 21063754 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-46 414 DATE: October 15, 2021 ORDER Entitlement to service connection for thoracic spine degenerative disc disease (DDD) is granted. Entitlement to service connection for cervical spine DDD is granted. REMANDED Entitlement to service connection for headaches, to include as secondary to the cervical and thoracic spine DDD, is remanded. FINDINGS OF FACT 1. The Veteran's thoracic spine disorder is related to his military service. 2. The Veteran's cervical spine disorder is related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degeneration of the thoracic spine have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for degeneration of the cervical spine have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1999 to November 2003. This appeal to the Board of Veterans' Appeals (Board) is from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 1. Entitlement to service connection for thoracic spine DDD is granted. 2. Entitlement to service connection for cervical spine DDD is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran alleges that his thoracic and cervical spine degenerative disc disease (DDD) began during service and has existed since that time. First, the Board finds that there are current disabilities. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). According to April 2021 VA examinations, the Veteran was diagnosed with degenerative arthritis of the thoracic spine and cervical spine. Second, the Board finds that there was an in-service event, injury, or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Several November 2000 service treatment records indicated that the Veteran was involved in a motor vehicle accident while in service. It was noted that the Veteran suffered from blunt force trauma. Third, the Board finds that the evidence of record does support a finding that the degenerative arthritis of the thoracic and cervical spine is related to active service. The Veteran was provided with a VA examination to evaluate his thoracic and cervical spine in January 2013. The examiner denied nexus as the Veteran had denied neck or back pain following his in-service motor vehicle accident. The Board finds this rationale to be inadequate as it was not sufficiently based upon medical reasoning or rationale. The Veteran was evaluated again in a July 2017 VA examination. The examiner determined that the Veteran's cervical spine arthritis was less likely than not related to service. The examiner explained that according to medical literature, cervical spine arthritis was a common cause of neck pain. He noted that it developed when the cushion discs in the spine deteriorated due to wear and tear. The examiner then determined that the Veteran's thoracic spine arthritis was less likely than not due to service. The examiner stated that according to the medical literature, spinal discs degenerated due to the aging process. In an August 2020 joint motion for remand, it was determined that this opinion was inadequate for several reasons. The examiner failed to address the Veteran's in-service motor vehicle accident or chiropractic records that noted the Veteran's thoracic spine complaints at only 31 years old. As this opinion was deemed inadequate, the Board affords it little probative weight. A final VA opinion was provided in April 2021. The examiner stated that the Veteran's thoracic and cervical spine disabilities were less likely than not due to service as degenerative joint disease was primarily genetic. The examiner noted that there were no complaints of back or neck pain in the September 2003 examination, and stated that there was no indication of ongoing disability since service. In an addendum opinion, the examiner noted that it was a fallacy that radiographic changes only occurred in older people and acknowledged that the Veteran was involved in a motor vehicle accident, but found that the Veteran's health problems started long after leaving service. The Board finds this addendum to be inadequate. The examiner's opinion and addendum are largely conclusory and based entirely on lack of contemporaneous medical records. The Veteran provided private medical opinions from three separate physicians. In an August 2011 correspondence, Dr. A.D. noted that the Veteran complained of upper and lower back pain. The doctor noted that the Veteran suffered from cervical lordosis which was a common condition related to motor vehicle accidents. The doctor noted that he reviewed the Veteran's medical history and determined that the Veteran's in-service motor vehicle accident could very well have caused the Veteran's medical conditions. The doctor noted that the Veteran's medical conditions were at least as likely as not due to service. In a June 2016 correspondence, Dr. S.A. noted that the Veteran complained of upper and lower back pain at six out of ten. The doctor noted that, based on the Veteran's history and the findings of the examination, it was likely that the Veteran was suffering from exacerbation of injuries sustained in the 2000 motor vehicle accident. The doctor noted that it was common to see chronic residual symptoms following significant injury caused by blunt force trauma. He stated that ligamentous injuries sustained due to traumatic incidents often did not fully heal due to the permanent nature of tissue damage. The doctor also noted that trauma from a motor vehicle accident could lead to whiplash which could cause additional damage to musculature and joint complex which could lead to scarring that does not heal even after proper care. A final correspondence was provided in October 2020 from Dr. B.H. The doctor confirmed that he had reviewed the Veteran's medical history and claims file. The doctor noted that the Veteran had no other known risk factors that may have led to his health conditions. The doctor determined that the Veteran's conditions were at least as likely as not related to his in-service motor vehicle accident. The doctor stated that significant injury could precipitate degenerative changes in the thoracic and cervical spine. This is to be considered especially for people who develop degenerative changes prior to 40 years old. The Board finds these opinions highly probative evidence in support of the Veteran's claim as they are provided upon review of the relevant facts (to include lay statements of symptomatology that the Board found probative) and are supported by explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Accordingly, service connection is granted for both conditions. REASONS FOR REMAND 1. Entitlement to service connection for headaches, to include as secondary to the cervical and thoracic spine DDD, is remanded. The Board finds that remand is required for an adequate VA opinion. The Board notes that though the Veteran's headaches were tangentially mentioned in each of the private opinions provided by the Veteran's three treating physicians, no adequate rationale was provided to support a grant of service connection for the Veteran's headache condition. In regard to the VA opinions, it is noted that in the prior Board decision, the examiner was asked to provide a service connection opinion for the Veteran's headaches. The examiner was directed to provide more than just a general explanation that tension headaches have no known causation. The examiner was also directed to address the Veteran's statements regarding in-service onset. The examiner provided an opinion in April 2021. The examiner denied nexus. He noted that the Veteran's headaches were cervicogenic in nature, but stated that the origins of the headaches were not important as there were no complaints of headaches in the September 2003 examination or any indication of ongoing disability since separation. In an addendum opinion, the examiner determined that it was difficult to distinguish the origin of the Veteran's headaches. The examiner then noted that the Veteran did not complain of headaches until many years after separation. The Board finds this opinion to be insufficient for adjudication purposes. First, the examiner provided an inadequate rationale for the negative nexus opinion. The examiner simply denied nexus as there were no complaints for headaches in the September 2003 examination and stated that there was no indication of ongoing disability since service. This statement, however, is contradicted by the examiner's addendum in which he acknowledges that the Veteran complained of headache pain in subsequent medical records. Although the Veteran did not complain of headache pain in the September 2003 examination, there is an STR in which the Veteran complained of headaches. The examiner was explicitly asked to provide rationale that did not rest simply on the fact that the causes of cervicogenic headaches were unknown. The examiner was also instructed to address the Veteran's lay statements of in-service onset of the Veteran's headaches. The examiner disregarded both directives in providing his opinion. As such, the Board finds this opinion to be inadequate and remand is required for an adequate VA opinion. The Board also notes that the examiner was not instructed to provide secondary service connection opinions. As the secondary service-connected opinions from the July 2017 VA examination suffered from the same inadequacies as those noted in the direct service connection opinions, addendum opinions are also required to address the Veteran's secondary service connection claims. The matters are REMANDED for the following action: 1. Obtain an opinion regarding the Veteran's claimed headaches. It is left to the examiner's discretion whether to physically examine the Veteran. a. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's headache condition had onset in, or is otherwise related to, active military service, to include an in-service motor vehicle accident. b. The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the headache condition is caused or aggravated by the service-connected thoracic or cervical spine condition. The examiner is asked to provide an opinion as to both causation and aggravation. The examiner must specifically address the Veteran's assertions of an in-service onset of the headaches. The examiner must also specifically address the complaints of headache pain contained in the Veteran's STRs. The examiner is asked to provide a rationale for all opinions rendered. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.