Citation Nr: 21063811 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-23 004 DATE: October 18, 2021 REMANDED Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1974 to May 1977 and from June 1977 to May 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO). In May 2021, the Board remanded the claims for further development. Specifically, in pertinent part, the Board ordered new VA medical nexus opinions for the cervical spine condition and right shoulder condition to address the questions of entitlement to secondary service connection based on causation and aggravation. Medical nexus opinions were obtained in June 2021. A remand by the Board imposes upon the Secretary of the 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). Unfortunately, for the reasons explained below, the Board finds that a remand is once again necessary. 1. Entitlement to service connection for a cervical spine condition is remanded. 2. Entitlement to service connection for a right shoulder condition is remanded. The Board finds the June 2021 VA nexus opinions for the cervical spine and right shoulder conditions are inadequate for several reasons. First, although the prior May 2021 Board remand noted that "[d]iscussion and citation of supporting medical treatise/research would be very helpful," it appears the examiner relied solely on medical literature to render an opinion, as there is no discussion of the facts or circumstances of the Veteran's case, i.e., no discussion of his medical records, treatment history, or reported symptomatology. While the Board appreciates the examiner's thorough review of medical literature, the opinions are nevertheless inadequate because they rely on medical research studies without providing any reasoned rationale connecting this Veteran's individual medical history to the studies. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran's condition or individual circumstances is inadequate). Second, the negative opinions on the question of causation are based solely on the absence of a direct causal relationship in the medical literature between cervical spine and lumbar spine conditions, or between shoulder conditions and lumbar spine conditions, and provide no meaningful rationale. See generally, Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate). It is noted that a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Third, the examiner's conclusions in the nexus opinions only reference causation, noting, "damage to the back is not shown to be causal for cervical conditions," "back conditions do not cause shoulder conditions," and "the current scientific evidence based medical literature does not provide support for a causal nexus for [either] condition." The examiner did not address the theory of aggravation for the Veteran's cervical spine condition or for the Veteran's right shoulder condition. El Amin v. Shinseki, 26 Vet. App. 136 (2018). The Board's remand directive explicitly required this theory to be addressed. Stegall, 11 Vet. App. 268. For example, the Veteran's private chiropractic assessment from March 2017 and VA medical records both reflect that the Veteran's posture was likely affected by his lower back condition and his neck and shoulder muscles weakened or shortened as a result of such postural changes (e.g., VA medical record dated August 31, 2015). Any impact of these lumbar postural changes on the cervical spine condition or right shoulder condition should be addressed. In the same vein, any impacts such as referred pain or muscle spasms resulting from the service-connected lower back disability should also be addressed. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Finally, the Board notes that the prior remand required the RO attempt to obtain private treatment records from RiverWay Clinic. In May 2021, the RO sent the Veteran a VA Form 21-4142 release to complete in order to request the records, but the evidence does not reflect that the Veteran returned the signed release. On remand, the RO should once again send the Veteran the 21-4142. The matters are REMANDED for the following action: 1. Obtain an addendum opinion as to the etiology of the Veteran's cervical spine condition. The examiner must review all pertinent documents in the record, to include a copy of this Remand. The examiner is asked to address the following: (a.) Provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's cervical spine condition was caused by his service-connected lower back condition. i. The opinion must explain why any statistical or medical studies are found to be persuasive or unpersuasive considering the facts and circumstances of this Veteran's case. ii. The sole reliance on the absence of a causal relationship in the referenced research studies is not considered adequate rationale. (b.) Provide an opinion as to whether it is at least as likely as not that the Veteran's cervical spine condition was aggravated by his service-connected lower back condition. i. The examiner is reminded that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires consideration of whether there has been any worsening, no matter how incremental, above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). (c.) All opinions must be accompanied by a clear rationale. 2. Obtain an addendum opinion as to the etiology of the Veteran's right shoulder condition. The examiner must review all pertinent documents in the record, to include a copy of this Remand. The examiner is asked to address the following: (a.) Provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's right shoulder condition was caused by his service-connected lower back condition. i. The opinion must explain why any statistical or medical studies are found to be persuasive or unpersuasive considering the facts and circumstances of this Veteran's case. ii. The sole reliance on the absence of a causal relationship in the referenced research studies is not considered adequate rationale. (b.) Provide an opinion as to whether it is at least as likely as not that the Veteran's right shoulder condition was aggravated by his service-connected lower back condition. i. The examiner is reminded that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires consideration of whether there has been any worsening, no matter how incremental, above and beyond the condition's natural progression. See Ward, 31 Vet. App. 233. (c.) All opinions must be accompanied by a clear rationale. 3. Request again that the Veteran complete and return VA Form 21-4142, in order to attempt to obtain private treatment records from RiverWay Clinic. If the Veteran responds, all reasonable attempts should be made to obtain such records. If any such records are unavailable, inform the Veteran and afford him the opportunity to submit any copies in his possession. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.