Citation Nr: 21068953 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-64 535 DATE: November 17, 2021 ORDER Service connection for a cervical spine disability is denied. REMANDED The service connection claim for a bilateral leg disability is remanded. FINDING OF FACT Although the Veteran has a current cervical spine disability, the evidence does not show that this disability is related to his active service in the Army National Guard. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army National Guard from June 1979 to December 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Juan, Commonwealth of Puerto Rico. In October 2018 and June 2021, the Board remanded this matter to the Regional Office for further evidentiary developments. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran asserts entitlement to service connection for a cervical spine disability. See e.g. June 2021 Appellate Brief. Although medical treatment records indicate that he is currently diagnosed with a cervical spine disability, including cervical disc disorder with myelopathy, see e.g. October 2017 Hospital Discharge Private Treatment Note, service treatment records do not show any evidence of in-service complaints, diagnoses, or treatments for a neck or cervical spine disability; nor any evidence of in-service neck or cervical spine related injuries from events or accidents during service. Nonetheless, the Veteran was afforded a VA examination for neck conditions in August 2021. After this VA examination, a VA examiner diagnosed the Veteran with cervical spine multilevel degenerative changes, status-post anterior cervical spine fusion. However, he opined that the Veteran's cervical spine disability less likely than not had its onset, or is otherwise related to his active service. As the rationale for this opinion, the VA examiner explained that service treatment records are silent for an in-service cervical condition of any kind, and that an imaging study that was ordered for this evaluation is compatible with normal automatic degenerative changes related to the aging process, as well as surgical management undertaken for pain improvement of such multilevel degenerative changes. The VA examiner further explained that the Veteran's testimony correlates with classic symptoms, onset, and progression of normal aging process. Generally, an opinion that is primarily based on the absence of evidence of an in-service condition, treatment, or illness is not a sufficient basis for denying a service connection claim for the disability in question. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In this case, however, the Veteran has not submitted any probative evidence for the Board to consider, to suggest that his current cervical spine disability is related to his active service. For example, there are no private treatment records from a period during the Veteran's active service; no supporting or corroborating testimonies from witnesses, such as, for example, fellow service members or superiors, to confirm or indicate that the Veteran had an in-service condition, illness, treatment, injury, or accident that may be related to a cervical spine condition. Although the Veteran suggests that his military records have sufficient evidence to support his claim, see November 2017 VA Form 9 (Board Appeal), said military records do not show any evidence that the Veteran complained of, was diagnosed with, or sought treatment for a neck or cervical spine condition during his active service. The Veteran has not even made it clear as to precisely when the onset of his cervical spine disability, and/or associated symptoms, occurred. Rather, he vaguely indicates that the onset of chronic cervical pain occurred approximately 20 25 years ago. See August 2021 VA Examination Report. Even if the Board were to accept or rely on this statement as an accurate fact, this would still suggest that the onset of the Veteran's cervical spine disability was in or around 1991, and well after the Veteran's separation from service in 1979. As there is no probative evidence to link the Veteran's current cervical spine disability to his service, the Board finds that the preponderance of the evidence is against this claim. Thus, service connection for a cervical spine disability must be denied. REASONS FOR REMAND The Board regrets further delay, as an additional development is required before the Board may render a fully-informed decision on the remaining issue on appeal. The Veteran asserts entitlement to service connection for a bilateral leg disability. See e.g. June 2021 Appellate Brief. In the most recent June 2021 remand, the Board found that a December 2020 VA opinion on the Veteran's bilateral leg disability was inadequate. Specifically, the Board explained that a VA examiner failed to provide an adequate rationale for his negative nexus opinion on the Veteran's bilateral leg disability because he failed to discuss multiple notations in the Veteran's service treatment records about leg cramps and tingling leg pain. Thus, it remanded this issue for the Regional Office to obtain another opinion from an appropriate physician Accordingly, the Veteran was afforded another VA examination for knee and leg conditions. In this August 2021 VA opinion, another VA examiner also opined that the Veteran's bilateral leg disability less likely than not had its onset during service, or is otherwise related to service. As the rationale for this opinion, however, the VA examiner adopted the reasoning from the December 2020 VA opinion, which the Board found to be inadequate, thereby indicating that he agrees with the December 2020 VA opinion. In doing so, however, this VA examiner, likewise, failed to discuss multiple notations in the Veteran's service treatment records about leg cramps and tingling leg pain. Therefore, this August 2021 VA opinion is not responsive to the June 2021 Board remand. As a matter of law, a Board remand affords a Veteran or other claimant the right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, a remand is required for substantial compliance with Board remand directives, and more specifically, obtaining a new medical nexus opinion on the Veteran's bilateral leg disability. The matters are REMANDED for the following action: 1. Obtain a new nexus opinion on the Veteran's bilateral leg disability from an appropriate physician (VA examiner). This VA examiner must review a complete claims file and must note this review in his or her report. The Regional Office must also provide the VA examiner with a copy of this REMAND. The VA examiner must undertake the following: a. Opine whether it is at least as likely as not (more than 50 percent probability) the Veteran's bilateral leg disability is the result of an in-service injury, illness or event; was incurred in active service; and/or is otherwise related to his active service. b. In rendering an opinion, the VA examiner must consider and discuss all probative evidence, especially including, multiple notations in the Veteran's service treatment records about leg cramps and tingling leg pain. c. The VA examiner should also consider all statements from the Veteran's about onset and continuity of symptoms. d. A detailed explanation is requested for all opinions. If an opinion cannot be provided without resorting to speculation, provide an explanation as to why this is the case and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.