Citation Nr: 21072775 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-16 263 DATE: December 6, 2021 REMANDED Entitlement to service connection for a cervical spine disability, including as secondary to lumbosacral strain, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1984 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs This matter was previously before the Board in February 2019 when it was reopened and remanded for additional development. The case is once again before the Board. The Veteran seeks service connection for a cervical spine disability. He asserted this disability had its onset during or resulted from service, and service connection is therefore warranted. During the appeal period, the Veteran was granted service connection for a lumbar strain disability. In April 2020, the Veteran asserted that his cervical spine disability is caused by his lumber spine disability. See VA Form 21-526EZ. As such, the Board finds that a secondary theory of entitlement has been added to the record and the claim has been amended accordingly. The Veteran's service treatment records show that in May 1992, he complained of sudden neck pain while shooting during a basketball game. He was noted to possibly have facet joint pain which may be muscular. In March 1995, the Veteran reported discomfort to his upper back for two days and was diagnosed with a strain. In December 2000, he reported back pain for four days and was diagnosed with a muscle strain. On a November 2003 Report of Medical history, the Veteran reported recurrent back pain. The Veteran's post-service treatment records include private treatment records from June 2014 indicating neck pain that the Veteran stated began in 2002. The Veteran was provided with a VA neck conditions examination in December 2014 where he reported that his neck pain began in the spring of 2000. The VA examiner noted diagnoses for a cervical strain in 1990 and mild degenerative arthritis. The examiner found that the Veteran's neck disability is less likely than not related to his service. The examiner reasoned that the Veteran's service injuries were muscular in nature and muscular irritations do not result in arthritis 20 years after the strain. However, the Board finds that this opinion is inadequate as the VA examiner did not address the noted facet joint pain from the Veteran's service treatment records in May 1992, and whether this was indicative of early arthritis. The Veteran was provided with another VA neck conditions examination in December 2019 where he reported that his neck pain began in 1993. The VA examiner noted diagnoses for cervical strain and degenerative arthritis of the spine. The VA examiner found the Veteran's neck disability less likely than not related to service. The examiner stated that the records did not reflect a continuity of care between the Veteran's service and his current diagnosis of arthritis as there was a "gap in complaints from 1991 to 2002." However, the Board finds that this opinion is inadequate as it is based on an inaccurate factual premise. As noted above, the Veteran was treated for neck pain in May 1992, March 1995, and December 2000. Additionally, the Board notes that the lack of documentation alone cannot be the basis of an opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Notably, the Veteran has repeatedly stated that he has been having neck pain since his time in service. See June 2014 private treatment records and VA examinations from December 2014 and December 2019. Accordingly, the Board finds that a new VA medical opinion should be obtained prior to adjudication of the claim. The matters are REMANDED for the following action: 1. Identify and associate with the claims file any VA treatment records. 2. Arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion on the following: a) Is it at least as likely as not (a 50 percent or greater probability) that any currently diagnosed cervical spine disability, to include cervical strain and degenerative arthritis, is related to service? In so opining, the examiner should consider and discuss the Veteran's service treatment records showing i) complaints of sudden neck pain and possible diagnosis of facet joint pain in May 1992, ii) reported discomfort to the Veteran's upper back and diagnosis of a sprain in March 1995, iii) diagnosis of muscle strain in December 2000, and iv) the November 2003 Report of Medical history where the Veteran reported recurrent back pain. b) Is it at least as likely as not (a 50 percent or greater probability) that any currently diagnosed cervical spine disability, to include cervical strain and degenerative arthritis, was caused by his service-connected lumbar spine disability? c) If not, is it at least as likely as not that the Veteran's diagnosed cervical spine disability, to include cervical strain and degenerative arthritis, was aggravated by his service-connected lumbar spine disability? If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. The examiner is reminded that the lack of documented treatment, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered when making a determination as to whether there is an etiological relationship between the claimed disability and service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that their reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements, other lay statements, or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After undertaking any additional development deemed appropriate and giving the Veteran and his representative full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. S. Morrad Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt 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.