Citation Nr: 21063772 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 15-12 759 DATE: October 15, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for radiculopathy of the bilateral upper extremities secondary to a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1992 to July 1995. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. The Board remanded these matters in June 2018, October 2020, and July 2021 for additional development. The case is now returned to the Board for further appellate consideration. 1. Entitlement to service connection for a cervical spine disability is remanded. As explained below, the Board is not satisfied that there was substantial compliance with its prior remand; therefore, the matters must be remanded once again. See D'Ariesv. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran seeks service connection for a cervical spine disability, claimed as a herniated disc in his neck, which he contends was incurred in or caused by military service. The Veteran specifically asserts that during service he was required to perform regular physical training, including completing 200 to 300 sit-ups per day with his hands clasped behind his neck and frequent road marches and hikes with a loaded rucksack weighing over 100 pounds. He contends that these activities caused constant strain on his neck and, in the absence of any other injury to his neck, is the only explanation for his current cervical spine problems. The Board notes that the Veteran has confirmed cervical spine diagnoses of degenerative disc disease, herniated discs, and cervical strain. In its October 2020 remand, the Board found a July 2019 VA medical opinion to be inadequate to decide the Veteran's claim. In this regard, the Board noted that, in that medical opinion, the VA examiner opined that the Veteran's cervical spine disability was less likely than not incurred in service. However, the examiner did not provide a medical rationale to support this conclusion; rather, she simply referenced, without explanation, two post-service medical records from May 1997 and February 1998 in which the Veteran sought treatment for neck pain. Because the examiner did not support her conclusion with sufficient medical rationale, the Board found this opinion to be inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Therefore, in the October 2020 remand, the Board directed the RO to obtain an addendum VA medical opinion to fully address the nature and etiology of the Veteran's cervical spine disability with consideration of his lay statements as to its onset. In December 2020, the Veteran underwent a new VA examination, and a medical opinion was obtained from the same VA examiner who provided the inadequate July 2019 medical opinion. In its July 2021 remand, the Board found the December 2020 examiner provided, nearly word-for-word, the same negative etiology opinion as was provided in July 2019. The Board noted that the examiner referenced two post-service medical records from May 1997 and February 1998 in which the Veteran sought treatment for neck pain but added, inexplicably, that "neck pain noted two years after discharge is not clinically relevant to DDD [degenerative disc disease]." Further, upon review, the Board expressed that as to the Veteran's lay statements as to the in-service onset of his neck pain, the examiner stated, "there is no medical evidence that sit-ups cause DDD of the cervical spine." Thus, in its July 2021 remand, the Board found the December 2020 opinion to be inadequate as it was conclusory and not supported by any medical rationale. The Board requested another opinion that adequately considers and discusses the Veteran's contention that he developed neck problems as a result of regular physical training (sit-ups, weighted marches, etc.) during military service and that he has suffered no other neck injury that would explain his disability. The examiner was asked to specifically address the relevance, if any, of the May 1997 private treatment record documenting complaints of neck pain (within two years of discharge) and the February 1998 MRI of the cervical spine. The Veteran was provided a VA medical opinion in August 2021. The examiner stated that the Veteran served from July 1992 to July 1995. The examiner noted that a review of the medical records does not show that the Veteran was evaluated for this condition while in service. The examiner stated that the records do not show evidence that the Veteran was evaluated for neck pain within a year of discharge. The examiner reported that the first documentation of neck pain after separation from service was in May 1997, which was almost two years after service. The examiner expressed that the Veteran's statement in support of the claim were reviewed and that the Veteran notes that he experienced neck stiffness while in service, but no specific injury. The examiner noted that the Veteran's neck stiffness, that did not require medical attention, does not correlate with cervical DDD and DJD (degenerative joint disease). The examiner expressed that in 1997, the Veteran was evaluated for neck pain after lifting weights which is a more likely cause of the current neck conditions. Therefore, the examiner opined that it is less likely that the cervical DDD and DJD, and left upper extremity radiculopathy conditions began while in service. Once again, the Board finds that the VA examiner's opinion is inadequate, and the record still does not contain a medical opinion that is sufficient to fairly decide the Veteran's service connection claim. To date, no VA examiner has adequately addressed the Veteran's contentions of onset of neck symptoms in service due to physical training that has continued since service, and that the Veteran was seen two years after service for the same disability. On remand, an addendum medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). 2. Entitlement to service connection for radiculopathy of the bilateral upper extremities secondary to a cervical spine disability is remanded. The Veteran's service connection claim for bilateral upper extremity radiculopathy is inextricably intertwined with the service connection claim for a cervical spine disability, which has been remanded by the Board in the decision herein. Thus, adjudication of the claim must be deferred pending adjudication of the Veteran's cervical spine claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to a qualified VA physician (M.D.) WHO HAS NOT YET PROVIDED AN OPINION IN THIS CASE to provide an addendum medical opinion with regard to service connection for a cervical spine disability. A full VA examination need not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner is asked to provide a fully articulated medical opinion that sufficiently addresses the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disability (i) had its onset during the Veteran's active-duty service or within one year of separation, or (ii) is otherwise etiologically related to his active-duty service? In providing the requested opinion, the examiner must adequately consider and discuss the Veteran's contention that he developed neck problems as a result of regular physical training (sit-ups, weighted marches, etc.) during military service and that he has suffered no other neck injury that would explain his disability. The examiner should also specifically address the relevance, if any, of the May 1997 private treatment record documenting complaints of neck pain (within two years of discharge) and the February 1998 MRI of the cervical spine. The examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. It is imperative that the requested medical opinion reconcile all available evidence of record, to include the Veteran's lay statements, hearing testimony, post-service medical records, including prior VA examinations and medical opinions, and any other pertinent evidence of record. The examiner is advised that the Veteran is competent to report his medical history, including when his symptoms began, and such reports must be acknowledged and considered in formulating any opinion. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's file, when necessary, to support the conclusion reached. If the examiner determines that an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner (AND THE RO) that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran's claim. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.