Citation Nr: 21067403 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-49 463 DATE: November 4, 2021 REMANDED Entitlement to service connection for a cervical spine (neck) disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1982 to January 1983, from January 1985 to January 1993 and from May 2002 to October 2002. This matter comes to the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a claim of entitlement to service connection for a cervical spine disorder with right shoulder pain in February 2017. In the June 2017 rating decision on appeal, the Regional Office (RO) denied service connection. The Veteran appealed the assigned initial rating in a July 2017 notice of disagreement. The Veteran's claim was last adjudicated in an August 2017 statement of the case (SOC). The Veteran continues to assert entitlement to service connection for a neck disorder with right shoulder pain. In a December 2020 Informal Hearing Presentation, the Veteran waived RO jurisdiction over all evidence added to the record since issuance of the August 2017 SOC. The Board has recharacterized the initial issue as entitlement to service connection for a cervical spine disorder and entitlement to service connection for a right shoulder disorder. 1. Entitlement to service connection for a cervical spine (neck) disorder is remanded. 2. Entitlement to service connection for a right shoulder disorder is remanded. It does not appear that the full service treatment records (STRs) and service personnel records (SPRs) from all three sets of active service are in the file. The August 2017 statement of the case indicates that STRs from 2005 were received in 1996, which is impossible. On remand, records from September 1982 to January 1983 and from May 2002 to October 2002 should clearly be requested and, if unavailable, 38 C.F.R. § 3.159(e) should be followed. A summary of the history of the Veteran's cervical and right should disorders is as follows: Service treatment records (STRs) reveals that in May 1986 X-ray findings reveal a history of head trauma twelve months prior which resulted in residual neck and back pain. The examiner ruled out an old fracture and noted congenital changes as the etiology of the Veteran's neck and back pain. At a separate May 1986 in-service consultation, the examiner diagnosed the Veteran with a muscle medical strain of the thoracic spine. Undated STRs reveal thoracic spine pain in 1986 with a history of trauma in 1982 and disc space narrowing presently asymptomatic at T-9 through T-10. In September 1991, the Veteran was treated for right foot pain when he sustained an injury to his right foot jumping from a rooftop. An undated radiological foot series reveals that the Veteran reported two months of right foot pain associated with the rooftop jump. X-ray findings were negative for a right foot fracture. The Veteran also received treatment for a right upper trapezius muscle strain. In December 1991, the Veteran was referred for physical therapy for his T-spine pain and myofascial syndrome. A five year history of facet syndrome was also noted. In January 1992, the Veteran reported right shoulder pain when performing push-ups. May 1992 radiological findings reveal congenital fusion of the thoracis lumbar spine at T-9 to T-10 with moderate t-spine scoliosis. In a May 1992 examination, the Veteran reported that he fell from the standing position a year ago and injured his right shoulder. The Veteran explained that he heard a crack and experienced right shoulder pain and tenderness which is sharp, constant, and dull. The examiner noted decreased strength in the Veteran's right arm ans was prescribed physical therapy. May 1992 physical therapy notes reveal no overall improvement of the t-spine. The physical therapist noted that physical therapy does not have much more to offer the Veteran and referred him to orthopedics for an x-ray. The examiner also placed the Veteran on a physical profile for three weeks. June 1992 radiological findings reveal a normal bone study of the posterior spine. In a September 1992 Report of Medical History, the Veteran reported a painful right shoulder with recurrent upper back pain. The Veteran also reported that he was in poor health. September 1992 treatment records reveal follow-up treatment for dorsal spine pain with a history of congenital T-9 and T-10. The clinician noted a block in the joint. MRI findings revealed no evidence of a herniated nucleus pulposus. A bone scan of the t-spine noted findings within normal limits. The clinician noted that the Veteran's pain is normally behind his scapular lateral t-spine and his dorsal pain is related to his upper extremity. The clinician's impression was non-spine muscular pain. Additionally, September 1992 STRs revealed a diagnosis of non-spine muscular pain. In a December 1992 screening, the clinician diagnosed the Veteran as negative for cervical adenopathy and noted a finding of strep pharyngitis. In a March 1993 Report of Medical History, the Veteran reported treatment for upper back problems while on active duty between 1991 and 1992. The Veteran was placed on a temporary medical profile and returned to active duty with no subsequent residuals. In a September 1993 medical pre-screening, the Veteran reported in the negative for back or neck trouble. In an October 1996 Report of Medical History, the Veteran reported that he broke his right elbow in October 1996. In an October 1996 Report of Medical history, the Veteran reported that he crushed his vertebrae in in 1982. In a November 1997 Report of Medical History, the Veteran reported negative for shoulder or neck pain. In an October 1996 VA general examination, the Veteran reported spraining his back and shoulder while undergoing physical therapy in 1991. X-rays of the back and shoulder at the time revealed normal findings. The Veteran reported occasional residual pain radiating into his neck which incapacitates him for a period of three to four weeks. A physical examination of the neck revealed unremarkable findings with no findings of a cervical neck disorder. In a November 2002 general examination shortly after separation from service, the Veteran's neck and back was noted as normal by the examiner with no reporting of neck or back problems from the Veteran. In a June 2004 National Guard Pre-Deployment Health Assessment, the Veteran reported to be in excellent health and did not complain of neck, back, or shoulder problems. February 2009 VA MRI findings reveal degeneration of the cervical intervertebral disc. Moderate to severe cervical spondylosis with moderate narrowing of the central canal producing moderate bilateral foraminal narrowing greatest at the C-4 and C-5. March 2014 private treatment physical therapy records reveal that the Veteran underwent physical therapy for complaints of chronic right shoulder pain and upper trap pain with decreased right arm strength and mid thoracic pain. April 2014 private treatment physical therapy records reveal that the Veteran underwent physical therapy for complaints of chronic right shoulder pain and upper trap pain with decreased right arm strength and mid thoracic pain. November and December 2014 private treatment physical therapy records reveal that the Veteran underwent physical therapy for complaints of chronic right shoulder pain and back pain. January 2015 private treatment records reveal that the Veteran underwent treatment for sharp pain in his neck and right scapula and upper thoracic spine. September 2016 private treatment records reveal that the Veteran underwent treatment at a pain clinic for his neck pain. In a December 2016 private spine consult, the examiner diagnosed the Veteran with neck pain, right shoulder pain, cervical facet arthropathy, and degenerative disc disease of the cervical spine. June 2016 and December 2016 private bone scan findings reveal increased activity planar configuration left lateral spine at the C4 through C-7 which likely localized to the uncovertebral joints rather than paraspinal muscle or tissue plane. July 2016 private treatment records reveal that the Veteran was prescribed steroid injections for his neck pain. January 2017 private treatment records reveal that the Veteran underwent epidural steroidal injections for his neck and right shoulder pain. February 2017 VA private treatment records reveal that the Veteran underwent treatment at a pain clinic for his neck and right shoulder pain. In an April 2017 VA back examination, the examiner diagnosed the Veteran with mild thoracic spondylosis and bilateral lower extremity radiculopathy. In a March 2017 private spine consult, the examiner diagnosed the Veteran with neck pain, right shoulder pain, cervical facet arthropathy, and degenerative disc disease of the cervical spine. In a May 2017 VA neck and shoulder and arm examination, the examiner diagnosed the Veteran with the following: degenerative arthritis of the spine; intervertebral disc syndrome; and cervical spine disc disease; and radiculopathy of the right upper extremity; right shoulder impingement; and acromioclavicular joint arthropathy of the right shoulder joint. The examiner opined that the Veteran's neck and right shoulder disorder was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner also opined that although the Veteran's right shoulder pain is related to his neck disorder, the Veteran's neck disorder is less likely than not related to his time in-service. The examiner explained that the Veteran's STRs show no documentation of his reported in-service injury, nor is there any record of follow-up or repeated treatment for the Veteran's reported in-service neck and right shoulder injury to suggest severity or chronicity. The examiner noted that in various medical reports in 1993, 1997, and 2002, the Veteran did not report any ongoing neck or right shoulder disorders. The examiner also noted that the Veteran's neck and right shoulder disorder was diagnosed decades after the Veteran's time in-service. The above examination may have been given without the benefit of all available records. As a result, as stated above, records should be associated with the file and then an opinion should be given as to both disabilities regarding: service connection on a direct basis, service connection due to or result of the service-connected thoracic spine disability, service connection on an aggravation basis due to or the result of a service-connected thoracic spine disability. In a November 2017 private spine consult, the examiner diagnosed the Veteran with neck pain, right shoulder pain, cervical facet arthropathy, and degenerative disc disease of the cervical spine. November 2017 to April 2018 private treatment records reveal that the Veteran regularly underwent physical therapy for impingement syndrome of his right shoulder. VA treatment records received in January 2019 reveal that the Veteran underwent physical therapy for impingement syndrome of his right shoulder. For the new examination, the examiner should first identify and clinically diagnose any findings related to the Veteran's neck and right shoulder disorders. The examiner should address the Veteran's in-service treatment for neck and right shoulder pain and any VA or private treatment records, medical opinions, or lay statements submitted by the Veteran relating his neck and right shoulder pain and any continuity of symptomology to service. Further, to assure a complete file for review any pertinent outstanding medical records should be sought. The matters are REMANDED for the following action: 1. Ask the Veteran to identify and provide appropriate releases for any care providers who may possess new or additional evidence pertinent to the remaining issue on appeal. This should include a release of information form for any private treatment pertinent to his remanded disability. 2. Associate any updated VA treatment records with the file. 3. Request STRs and SPRs from September 1982 to January 1983 and from May 2002 to October 2002. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. A negative response is requested and should be placed in the file and the Veteran should be informed if VA is unable to obtain records. 38 C.F.R. § 3.159(e)(1). 2. After the foregoing development has been completed to the extent possible, return the records to the prior examiner, or a similarly qualified examiner and schedule the Veteran for any pertinent examinations (if necessary) for his remanded disabilities. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the records and the Veteran (if necessary) the examiner must provide a full description of all symptoms and manifestations associated with the Veteran's remanded disabilities above. For the cervical spine, the examiner should state: whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a current cervical disability that is related to service; o whether it is at least as likely as not that any cervical spine disability was caused or aggravated by any current service-connected disability (to include the thoracic spine disability). o If aggravated, the examiner should clarify whether there is medical evidence created prior to aggravation or at any time between the aggravation and the current level of disability that shows a baseline of the disability prior to aggravation. The examiner should reference the above history in the body of the remand. For the right shoulder disability, the examiner should state: whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a current right shoulder disability that is related to service; o whether it is at least as likely as not that any right should disability was caused or aggravated by any current service-connected disability (to include the thoracic spine disability). o If aggravated, the examiner should clarify whether there is medical evidence created prior to aggravation or at any time between the aggravation and the current level of disability that shows a baseline of the disability prior to aggravation. A clear and complete rationale shall be provided for each opinion regarding diagnosis and nexus. 3.The AOJ must ensure that the examiner's report complies with this remand and answers the questions presented in the request. The AOJ must also ensure that the examiner documents consideration of the electronic claims file. If the report is insufficient, the AOJ should take corrective action. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elliot Harris 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.