Citation Nr: 21073877 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 11-26 397A DATE: December 13, 2021 ORDER Entitlement to service connection for a cervical spine disability is granted. REMANDED Entitlement to a rating in excess of 10 percent for degenerative arthritis of the lumbar spine prior to February 4, 2015, and in excess of 20 percent thereafter, is remanded. Entitlement to a rating in excess of 10 percent for a right knee strain is remanded. Entitlement to a rating in excess of 10 percent for a left knee strain is remanded. Entitlement to total disability for individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his cervical spine disability is at least as likely as not related to active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1974 to June 1978. The Board of Veterans' Appeals (Board) remanded the issue of service connection for cervical spine disability in October 2015, January 2018, and May 2020 to obtain adequate medical opinions. The Board also remanded the issue of total disability for individual unemployability (TDIU) for further development because it is inextricably intertwined with the Veteran's other claims. However, despite the Regional Office (RO) obtaining an addendum opinion in June 2021, the VA examiner failed to accurately consider the evidence of record regarding the Veteran's treatment history and complaints of neck pain relating back to at least October 2009. As such, the Board finds there was not substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-147 (1999). Despite this, the Board finds there is adequate evidence in the record to decide the matter of service connection for a cervical spine disability, and another remand to develop this issue is not required. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 1. Entitlement to service connection for a cervical spine disability The Veteran seeks entitlement to service connection for a cervical spine disability, which he contends is related to active duty service. Specifically, he contends that he suffered two cervical strains during military service and had a neck brace for one month after suffering a hard landing as a parachutist. He reported that he originally suffered intermittent neck pain since service, but that his neck pain has been constant for the past 4 5 years. After considering all the evidence of record, the Board determines that service connection is warranted for a cervical spine disability. First, the Veteran sought treatment for constant neck pain in October 2009 and was diagnosed with cervical strain in January 2016. X-ray imaging of his cervical spine from May 2018 revealed cervical spondylosis. Next, his May 2018 medical records indicate that he has suffered neck pain and stiffness since a 1976 parachuting accident, for which he underwent physical therapy, chiropractic care, and injections over the years. Although the Veteran reported seeking treatment in service for cervical strains incurred during rough parachute landings, this could not be found in service treatment records, but there is evidence in service treatment records of the Veteran injuring joints in his lower extremities multiple times as a result of rough landings. Consistent with the Veteran's reports, the Veteran's military occupational specialty was a parachutist and he was awarded a parachuting badge, indicating he completed a significant number of jumps. In support of his contentions, the Veteran submitted multiple studies in November 2017 indicating that parachutists have higher incidents of injury, including spinal injury, than other military members. Furthermore, one study found that parachutists suffer permanent changes in the cervical and thoracic spine caused by repeated trauma from parachuting, and that parachuting causes traction spurs and spondylolisthesis, which were found regardless of reports of pain in study participants. As the Veteran was diagnosed with spondylosis of the cervical spine based on x-ray imaging from May 2018, the studies support his contentions that he has experienced neck pain since service as a result of injuries suffered during traumatic parachute landings. Furthermore, there is no evidence in the record of any other trauma or neck injury since service to which his current cervical spine disorder can be linked. The Board acknowledges the negative opinions from the September 2015, January 2016, January 2020, and June 2020 VA examiners. However, these examinations were inadequate because they did not consider the medical records demonstrating reports of neck pain beginning in 2009, they did not examine and discuss the medical literature demonstrating high rates of cervical spine injuries in parachutists, and they did not discuss why they found the Veteran's lay statements reporting symptoms since service lacked credibility. As such, these opinions are inadequate and not probative. Ultimately, affording the Veteran the benefit of the doubt, the weight of the evidence supports service connection for a cervical spine disability. Thus, service connection should be granted. 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. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the lumbar spine prior to February 4, 2015, and in excess of 20 percent thereafter, is remanded. 2. Entitlement to ratings in excess of 10 percent for bilateral knee strain is remanded. The Veteran asserts that his service-connected degenerative arthritis of the lumbar spine and bilateral knee strains are more disabling than reflected by the currently assigned ratings. The Veteran underwent VA examinations for his knees and low back in June 2018. However, the Veteran reported that he has experienced worsening pain, range of motion limitations, functional limitations, antalgic gait, and stiffness in his back and knees. He also contends that he has worsening instability in his knees and that he has radiculopathy to the right lower extremity, for which he should be rated. Furthermore, private medical records from June 2020, including x-rays of the bilateral knees, demonstrate severe bilateral knee tricompartmental osteoarthritis, bone-on-bone in the left medial knee compartment, and almost bone-on-bone in the right medial knee compartment. A September 2020 MRI of the lumbar spine also reveals multilevel degenerative changes with broad-based disc protrusion that is slightly right-sided in nature, as well as a posterior element. As the Veteran's contentions and the private medical records may demonstrate an increase in the level of disability, the Board finds new examinations are required to evaluate the current degree of impairment of the Veteran's bilateral knee disabilities and lumbar spine disability, to include any neurological symptoms such as radiculopathy. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995). 3. Entitlement to TDIU is remanded. The Veteran alleges that he is unable to work due to service-connected disabilities. As the Veteran's service-connected cervical spine disability and a decision on the remanded issues of increased ratings for a lumbar spine disability and bilateral knee disabilities could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required. The matters are REMANDED for the following action: 1. The RO should obtain and associate any updated VA treatment records with the file. 2. Schedule the Veteran for a VA examination to assist in determining the nature and current level of severity of: (a.) Service-connected degenerative arthritis of the lumbar spine, to include any neurological symptoms such as radiculopathy; and (b.) Service-connected bilateral knee strain. The evidentiary record should be made available to and reviewed by the examiner. 3. After the above has been completed, readjudicate the Veteran's TDIU claim. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel