Citation Nr: 21067261 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-52 818 DATE: November 3, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a lumbar spine disability is remanded. Entitlement to service connection for a cervical spine condition is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2004 to September 2009, including participation in combat activities. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran testified before the undersigned in November 2021. 1. Increased rating for a lumbar spine disability The Veteran attended a VA back examination in August 2017. The examiner identified diagnoses of a lumbar strain and degenerative disc disease of the lumbar spine. The examiner noted that the Veteran was only service connected for the lumbar spine strain and found that degenerative disc disease of the lumbar spine is less likely than not due to active duty or due to the lumbar spine strain. The examiner further stated that it would be speculative to opine to what degree the Veteran's abnormal back exam is due to the lumbar strain and the degenerative disc disease of the lumbar spine. If it is not possible to separate the effects of the Veteran's service-connected and nonservice-connected disabilities, the Veteran's signs and symptoms should be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). As the examiner stated it would be speculative to opine to what degree the Veteran's symptoms were attributable to each diagnosed back disability, all symptoms should have been attributed to his service-connected disability. In addition, the examiner noted in the medical history portion of the examination that the Veteran reported radiating pain to the right buttock and down the right leg. However, the examiner found the Veteran had no radicular pain or signs and symptoms due to radiculopathy. The examiner did not provide any rationale to reconcile this finding with the Veteran's reports of radiating pain down his right leg. Accordingly, the Veteran should be afforded a new VA examination for his lumbar spine disability. 2. Service connection for a cervical spine condition The Veteran attended a VA neck (cervical spine) examination in August 2017. The examiner found the Veteran had a diagnosis of degenerative disc disease of the cervical spine. The examiner found that the Veteran's degenerative disc disease of the cervical spine is less likely as not proximately due to or the result of the service-connected lumbar spine disability. The only rationale offered was that the objective evidence does not support the cervical spine condition is due to the lumbar spine disability. The examiner did not offer an opinion as to whether it was at least as likely as not that the Veteran's cervical spine condition was aggravated by his service-connected lumbar spine disability. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Additionally, the examiner did not address whether the Veteran's cervical spine condition was at least as likely as not caused by his active service, or if the cervical spine disability was caused or aggravated by his service-connected left shoulder disability, which have been raised by the record. Therefore, the Veteran should be afforded the opportunity for a new examination and opinion on remand. In addition, on the November 2018 VA Form 9, the Veteran stated that he has treatment records at the James H. Quillen VA Medical Center in Mountain Home, Tennessee, dated from 2014 to 2017. These medical records do not appear to have been associated with the claims file. In addition, the Veteran testified that magnetic resonance imaging (MRI) studies of his back and neck were performed in September 2021 by a private provider to whom the Veteran was referred by VA. Therefore, the AOJ should attempt to obtain these on remand. The matters are REMANDED for the following actions: 1. Obtain updated and any outstanding VA Medical Center records, specifically to include records dated from 2014 to 2017 from the James H. Quillen VA Medical Center in Mountain Home, Tennessee. In addition, ensure reports from the Veteran's most recent MRI studies of the back and neck performed in or around September 2021 are requested and associated with the claims file. 2. Then, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should consider the signs and symptoms of both service-connected and nonservice connected lumbar spine disabilities in evaluating the severity of the Veteran's lumbar spine disability. The examiner must address the Veteran's reports of radiating pain down his right leg in determining whether he has any evidence of radiculopathy. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an appropriate VA cervical spine examination. The examiner must review the claims file in conjunction with the examination. The examiner should provide an opinion on the following questions (the examiner must provide a detailed rationale for any opinion expressed). (a.) Is the Veteran's cervical spine condition at least as likely as not (a 50 percent or greater probability) related to service? The examiner must consider and address the Veteran's November 2021 hearing testimony that he carried a mortar tube/tripod/baseplate across his shoulders and the back of his neck for several kilometers at a time on multiple occasions during service. The examiner must also address whether the cervical spine condition is related to the in-service IED explosion in which the Veteran was knocked unconscious for several minutes and sustained a traumatic brain injury. (b.) Is the Veteran's cervical spine condition at least as likely as not (a 50 percent or greater probability) caused by his service-connected lumbar spine disability? (c.) Is the Veteran's cervical spine condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service connected lumbar spine disability? (Continued on the next page) (d.) Is the Veteran's cervical spine condition at least as likely as not (a 50 percent or greater probability) caused by his service-connected left shoulder disability? (e.) Is the Veteran's cervical spine condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service connected left shoulder disability? Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Patrick, 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.