Citation Nr: 21072058 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 19-25 387 DATE: December 2, 2021 REMANDED Entitlement to service connection for cervical spine disability, to include as secondary to service-connected low back disability, is remanded. Entitlement to a rating in excess of 10 percent for mechanical low back pain syndrome with degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1964 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction. Joint Motion for Partial Remand In October 2020, the Board denied an increased rating in excess of 10 percent for mechanical low back pain syndrome with degenerative arthritis and remanded the claim for entitlement to service connection for a cervical spine disability, to include as secondary to service-connected low back disability, for additional development, including affording the Veteran a new VA examination and obtaining a medical opinion addressing the likely etiology of the disability. See Board Decision and Remand dated October 23, 2020. The Veteran appealed the Board's October 2020 denial of an increased rating for mechanical low back pain syndrome with degenerative arthritis to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Partial Remand (JMPR), remanding the increased rating claim. The JMPR represents agreement between the parties (the Veteran and VA Office of General Counsel) that the Board erred by not considering evidence reflecting that the Veteran's flexion is less than 60 degrees, and that the Board's statement of reasons or bases for its decision was inadequate because it failed to address the aforementioned evidence. See JMPR dated June 14, 2021 at pgs. 1-2. Additionally, the parties agreed that the Board failed to ensure that VA satisfied its duty to assist the Veteran in the development of his claim, specifically, that the record does not reflect that VA attempted to obtain treatment records from a private physician despite the Veteran submitting a signed authorization for the release of such records to VA. Id. at pgs. 2-3. In June 2021, the Veteran's representative submitted a memorandum that included, in part, arguments reflected in the JMPR, as well as argument that the May 2017 and May 2019 VA examinations are inadequate. See Veteran's Memorandum received June 23, 2021 at pg. 1. The Board sent the Veteran and his representative notice that he could submit additional evidence and argument in support of his appeal within 90 days before the Board would proceed with readjudication. See Board correspondence dated July 15, 2021. The Veteran replied by waiving RO consideration of the June 2021 memorandum and requesting that the Board proceed with adjudication of the increased rating claim. See Representative's Correspondence dated October 26, 2021. Nevertheless, there is no prejudice to the Veteran as the Board is remanding the increased rating claim for further development. Thus, the Veteran's representative will have an opportunity to submit appellate argument if the case is returned to the Board following completion of the remand directives. The Veteran's claim of service connection for a cervical spine disability has been readjudicated as reflected in the March 2021 Supplemental Statement of the Case, and now returns to the Board for further appellate action. The record reflects that the Veteran was afforded a VA examination and both the March 2021 examination report and VA etiology opinion are of record and have been reviewed. However, as the March 2021 opinions reflect deficiencies, the Board finds there has not been substantial compliance with its October 2020 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Therefore, though the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that the Veteran is afforded every possible consideration. Cervical Spine When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds deficiencies in the March 2021 VA opinions addressing direct and secondary service connection of the Veteran's cervical spine disabilities. Although the VA examiner identified four cervical spine diagnoses during the March 2021 examination, cervical strain, degenerative arthritis, intervertebral disc syndrome, and spondylolisthesis, the associated nexus opinion addresses only the etiology of "cervical disc disease," and the secondary service connection opinion addresses only "osteoarthritis" and "cervical disc disease." The disabilities reflected in the March 2021 opinions are phrased differently than the diagnoses in the March 2021 VA examination, which leaves the opinions unclear and open to interpretation as to whether the disabilities reflected in the opinions are the same as those specified in the diagnosis section of the examination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). Additionally, in opining that the Veteran's cervical spine disability is less likely than not related to service, the VA examiner said review of the record revealed "no evidence of or treatment for a neck injury sustained after a fall into a Foxhole while in service." See VA Medical Opinion dated March 29, 2021 at pg. 2 (Section 3C). However, the Veteran has consistently asserted that he injured his neck during a fall into a Foxhole in Vietnam, including during the May 2019 VA back examination. See, e.g., VA Cervical Spine Conditions examination dated May 2, 2017; Notice of Disagreement received November 30, 2017; VA Thoracolumbar Spine Conditions examination dated May 13, 2019. A layperson such as the veteran is competent to report the circumstances giving rise to the initial observable symptoms, as well as the nature of the symptoms during and after service because this requires only personal knowledge that comes to him or her through their senses, not medical expertise. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Here, the March 2021 VA examiner acknowledged but without explanation disregarded the Veteran's lay statements describing his in-service neck injury and relied heavily on the absence of complaints in the service treatment records as the rationale for the negative nexus opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Accordingly, addendum opinions are needed addressing the likely etiology of the Veteran's diagnosed cervical spine disabilities. See Barr, supra; Stegall, supra. Low Back The Court has held that upon eliciting information from the record and the veteran regarding the severity, frequency, duration, or functional loss manifestations during, e.g., flare-ups, a VA examiner must "express an opinion on whether pain could significantly limit functional ability and the examiner's determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss" due to pain on use or during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). As emphasized by the Veteran, the May 2017 and May 2019 VA examiners elicited such information from the record and the Veteran (e.g., the Veteran's flare-ups that occurred any time he "bends down" and if he stands in one place for too long; symptoms were worse with activity), but the May 2017 examiner said it could not be determined whether pain, weakness, fatigability or incoordination significantly limited range of motion (ROM) without mere speculation even though the Veteran was experiencing a flare-up during the examination; the May 2019 examiner said reduced ROM due to flare-ups could be estimated, but entered the same ROM measurements as recorded for the initial ROM measurements. Additionally, the May 2019 examiner described functional loss due to repetitive use as "Posture angled to left," but provided no estimate of reduced ROM. Thus, despite having elicited relevant, detailed information from the Veteran pertaining to functional impairment with repeated use and during flare-ups, neither the May 2017 examiner nor the May 2019 examiner, as now required by Sharp, estimated the resulting additional functional loss of motion of the Veteran's lumbar spine, a deficiency which limits the probative value of the examinations. Accordingly, an addendum VA medical opinion taking into account the holdings in Sharp must be obtained on remand. See Barr, supra. Lastly, the Veteran has identified outstanding treatment records relevant to his increased rating claim. See Veteran's Memorandum received June 23, 2021 at pg. 9. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, which includes making reasonable efforts to obtain relevant private medical records. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c)(1). Therefore, on remand, VA must attempt to obtain these records and associate them with the electronic claims file prior to readjudication of the claims. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Review the claims file to identify all VA Forms 21-4142, Authorization and Consent to Release Information submitted by the Veteran or his representative, including the Veteran's January 2018 submission identifying outstanding private treatment records of private physician, Dr. S. Labou, to determine which such authorizations VA has not acted upon, if any. Then, contact the Veteran and invite him to provide information regarding all outstanding non-VA medical treatment records relevant to his claims, providing him VA Forms 21-4142, Authorization and Consent to Release Information to the VA for this purpose. Also advise the Veteran that he may submit such records if he so chooses. Allow a reasonable time for reply. Then, attempt to obtain all outstanding private treatment records and associate all efforts associated thereto with the claims file. If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). 3. After remand directives 1 and 2 have been completed, obtain an addendum opinion from the same VA examiner who conducted the March 2021 VA Neck (Cervical Spine) Conditions examination, if available, as to the etiology of the Veteran's currently diagnosed cervical spine disabilities. If the same examiner is unavailable, request an addendum opinion from an appropriately qualified VA examiner. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. *The examiner's review of the body of this Remand is recommended to assist in the application of these remand directives and in avoiding deficiencies the Board has identified in previous examination reports/opinions. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinion. Should an examination(s) be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify all currently diagnosed cervical spine disabilities that have been present at any point since the commencement of the claim period in January 2017. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that EACH of the currently diagnosed cervical spine disabilities onset during service, manifested within one year after service separation, or is otherwise etiologically related to service, to include a neck injury described by the Veteran as having occurred when he fell into a foxhole in Vietnam. The opinion must consider the Veteran's lay statements asserting that he injured his neck during a fall into a foxhole in Vietnam. (c) If the answer to (b) is negative, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that EACH of the cervical spine disabilities was CAUSED or AGGRAVATED by the service-connected low back disability. *Any increase/aggravation is sufficient; permanent aggravation is NOT required. See Ward v. Wilkie, 31 Vet. App. 233, 239-240 (2019) (permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease). *Please ensure that the diagnosed cervical spine disabilities reflected in the March 2021 VA Neck (Cervical Spine) Conditions examination (or as reflected in a new examination should one be provided to the Veteran) are PRECISELY reflected in the requested addendum opinions. Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence, which is identified by VBMS labels and receipt dates in parenthesis: (i) Notice of Disagreement and Veteran's statement regarding in-service injury to his neck (see VBMS entry with document type "NOD," receipt date 11/30/2017); (ii) Veteran's lay statements regarding his in-service neck injury as reflected in the May 2017 VA Neck (Cervical Spine) Conditions DBQ (see VBMS entry with document type "C&P Exam," receipt date 05/02/2017; (iii) Veteran's statement regarding service connection of his cervical spine disability (see VBMS entry with document type "Buddy / Lay Statement," receipt date 02/08/2021); and (iv) Veteran's lay statements regarding his in-service neck injury as reflected in the March 2021 VA Neck (Cervical Spine) Conditions DBQ (see VBMS entry with document type "C&P Exam," receipt date 03/29/2021. *The Board's reference to evidence in this context should not be construed as a determination of its credibility. The examiner must provide a complete rationale for all opinions provided. 4. Schedule the Veteran for a VA examination with an appropriately qualified examiner to determine the current severity of his service-connected mechanical low back pain syndrome with degenerative arthritis AND any associated neurological manifestations. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. *The examiner's review of the body of this Remand is recommended to assist in the application of these remand directives and in avoiding deficiencies the Board has identified in previous examination reports/opinions. *All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. The examiner is requested to review the claims file, then respond to the following regarding the Veteran's service-connected mechanical low back pain syndrome with degenerative arthritis: (a) Assess functional loss, flare-ups and increased functional loss on repetitive use in terms of the degree of additional range of motion (ROM) loss, considering all procurable and ascertainable data, including consideration of the Veterans statements, e.g., statements reflected in the May 2017 and May 2019 VA thoracolumbar spine examination regarding repetitive use and flare-ups. Indicate any and all associated orthopedic AND neurologic manifestations. *If the examiner determines that flare-ups and/or repetitive use cause variable reductions in ROM of the affected joints, he or she must use information obtained from the Veteran to estimate variations in reduced ROM in terms of degrees. *If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). *In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use and during any flare-ups. *Full range of motion (ROM) testing must be performed where possible. The joints involved should be tested, including for pain, in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in non weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence, which is identified by VBMS labels and receipt dates in parenthesis: (i) Veteran's "Joint Motion for Partial Remand" detailing VA and private medical evidence of record and arguments as to why certain prior VA examination findings are in error and favorable medical evidence demonstrating lumbar flexion limited to as few as 30 degrees (see VBMS entry with document type "CAVC Decision," receipt date 06/22/2021); and (ii) Veteran's "Memorandum" detailing VA and private medical evidence of record and arguments as to why certain prior VA examination findings are in error and favorable medical evidence demonstrating lumbar flexion limited to as few as 30 degrees, lower extremity radiculopathy, and bowel and bladder abnormalities (see VBMS entry with document type "Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief)," receipt date 06/23/2021). *The Board's reference to evidence in this context should not be construed as a determination of its credibility. The examiner must provide a complete rationale for all opinions provided, if any. 5. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.