Citation Nr: 21066786 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 14-15 260A DATE: November 2, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1955 to August 1957. He appeals an October 2011 rating decision by the Agency of Original Jurisdiction (AOJ). This case was previously before the Board. In January 2021, the Board remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. As such, the case has returned to the Board for further appellate proceedings. The Veteran contends that his neck disability was caused by a fall during service in 1955. Alternatively, the Veteran also contends that his neck disability was caused or aggravated by his service-connected back and/or left knee disabilities. In January 2021, the Board remanded the claim for an examination and opinion where the examiner was to determine the nature and etiology of the Veteran's neck disability, including both direct and secondary service-connection opinions. See January 2021 Board remand. The Veteran attended a July 2021 VA examination. The examiner opined that the Veteran's neck disability was less likely than not due to service, including a reported fall from a second story barrack. See July 2021 VA examination report. The examiner reasoned that although the Veteran alleges that he injured his neck during his active-duty service after a fall in 1955, there is no objective evidence of chronicity of care, complaints and/or treatment during his active-duty service or within 10 years after his discharge. There is evidence that the Veteran was diagnosed with the actual existing condition in 2016, several years after his discharge from his active-duty service. Actual existing condition of cervical degenerative arthritis by x-ray is part and parcel related to the normal aging process. Id. The Board finds that this opinion relies primarily on the absence of contemporaneous medical records to render a negative nexus opinion. Specifically, that the Veteran's service treatment records (STRs) do not contain evidence of a neck problem and he was not diagnosed with one until 2016; such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Moreover, the Board notes that the Veteran's VA treatment records indicate an October 2011 notation of cervical stenosis. See October 22, 2011 VA treatment record. This was outlined in the Board's prior January 2021 remand, but not addressed by the July 2021 VA examinerthe July 2021 examiner noted a diagnosis date of 2016 for the Veteran's current neck problem without any discussion of this October 2011 note of cervical stenosis as required by the prior remand. See January 2021 Board remand; see also July 2021 VA examination report. As such, the Board finds that there has not been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). Regarding the question of secondary service-connection, the July 2021 VA examiner provided opinions for causation and aggravation for the Veteran's service-connected back disability, and a causation opinion regarding the Veteran's service-connected left knee disability. However, the examiner failed to address whether his service-connected left knee disability aggravated his claimed neck disability. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that medical opinions addressing the issue of secondary service connection are inadequate when they fail to adequately encompass the question of aggravation). Additionally, The July 2021 VA examiner also did not address the September 2010 statement by Dr. N.A.O., which indicated a possible link between the Veteran's neck disability and his service-connected disabilities as outlined in the January 2021 Board remand. Based on the above, the Board finds that the July 2021 VA examination and opinion is inadequate. The Veteran attended a subsequent September 2021 VA examination. The September 2021 VA examiner again provided a negative nexus opinion regarding direct service connection, stating that the Veteran's STRs are silent for a neck condition and the Veteran has only been treated within recent years for a neck disability. See September 2021 VA medical opinion. The Board finds that this opinion also does not comply with the holding in Buchanan. See Buchanan, 451 F.3d at 1337. Notably, while the September 2021 examiner did address the September 2010 Dr. N.A.O. opinion, it did not address the October 2011 VA treatment record indicating cervical stenosis as required by the prior January 2021 Board remand. The September 2021 VA examiner provided a combined opinion and rationale regarding the Veteran's contention that his service-connected left knee and/or back disabilities caused or aggravated his neck disability. See September 2021 VA examination report. The examiner stated that medical literature fails to show that a left knee condition or low back condition causes or aggravates degenerative changes at the cervical spine, noting that they "have different pathophysiological [sic] or biomechanically process unrelated to each other." Id. The examiner ultimately concluded that the Veteran's neck condition is not secondary to his left knee trauma or back condition. However, as stated, the examiner provided a combined finding and rationale for both the causation and aggravation elements of secondary service connection. The Court has held that a VA medical opinion should not combine causation and aggravation when addressing secondary service connection, as they are independent concepts requiring separate findings and rationale. Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018); El-Amin, 26 Vet. App at 140-141. Because both the July 2021 and September 2021 VA examinations are inadequate for decision-making purposes, the issue must be remanded. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his neck disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's neck disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. The opinion must include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether an examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the reviewing clinician, the reviewing clinician is asked to respond to the following: (a.) Is it at least as likely as not the Veteran's neck disability was incurred in or is otherwise related to his time in service, including the Veteran's reported in service fall? The reviewing clinician is directed to discuss the October 2011 VA treatment note indicating cervical stenosis as required by the prior Board remand. (b.) Is it at least as likely as not the Veteran's neck disability was (i) caused or (ii) aggravated by his service-connected left knee disability? (c.) Is it at least as likely as not the Veteran's neck disability was (i) caused or (ii) aggravated by his service-connected back disability? The reviewing clinician must provide separate findings and rationales relating to causation and aggravation for both the service-connected left knee and back disabilities. The reviewing clinician is directed to discuss the September 2010 opinion of Dr. N.A.O. as required by the prior Board remand. The reviewing clinician should note the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the reviewing clinician rejects the Veteran's reports of symptomatology, a reason for doing so should also be provided. The reviewing clinician should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After the above development has been completed, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.