Citation Nr: 21074604 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-40 369 DATE: December 15, 2021 REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1983 to April 1984. The matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2016 rating decision, which determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a cervical spine disability. In October 2018, the Board reopened the claim for entitlement to service connection for a cervical spine disability and remanded the underlying service connection claim for additional development. The claim was remanded again in June 2021. 1. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability, is remanded. In October 2018, the Board remanded the claim for a new etiology opinion, which was obtained in June 2019. Upon review, the Board finds that the June 2019 negative etiology opinion does not comply with the October 2018 remand instruction, as it does not reflect consideration of the Veteran's lay statements. Because the examiner ignored this favorable evidence, and instead focused on the lack of contemporaneous medical evidence, the VA opinion is inadequate. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, in June 2019, the United States Court of Appeals for Veterans Claims (the Court) issued a decision in Ward v. Wilkie, which affects the Veteran's claims. 31 Vet. App. 233 (2019). In Ward, the Court held that secondary service connection is warranted for "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions... regardless of its permanence." Id. at 239. Upon review of the opinion, the Board finds that the June 2021 etiology opinion does not comport with the holding in Ward. Thus, remand to the agency of original jurisdiction (AOJ) for an addendum opinion is necessary. The matters are REMANDED for the following action: 1. Obtain a new etiology opinion from a new examiner to assess the nature and etiology of the Veteran's cervical spine disability. Regardless of who offers the opinion, if the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination. After reviewing the claims folder and examining the Veteran, for the Veteran's cervical spine disability, the examiner is specifically instructed to provide the following information: (a) Is it "at least as likely as not (probability of approximately 50 percent)" that the Veteran's cervical spine disability BEGAN IN or is related to his time in the service, yes or no? (b) Is it "at least as likely as not (probability of approximately 50 percent)" that the Veteran's cervical spine disability was CAUSED BY HIS SERVICE-CONNECTED carpal tunnel syndrome? (c) Is it "at least as likely as not (probability of approximately 50 percent)" that the Veteran's cervical spine disability underwent any incremental increase in disability, regardless of its permanence, due to the service-connected carpal tunnel syndrome? The examiner must explicitly address and consider the following: i) April 2007 Veteran's Statement: "I do now believe the injury to my neck occurred in service was overlooked or missed by the medical staff at the time of discharge and has now deteriorated to the point it is causing symptoms/issues to my right arm." ii) April 2014 Veteran's Statement: "Since my nerve damage to right arm diagnosis and discharge from military, I have experienced increased symptoms that resulted in constant pain to my neck." iii) August 2016 Veteran's Statement: The Veteran reports that his cervical spine condition results from an injury to his neck that occurred while on active duty during a training exercise while shoveling a dozer tracker circa 1983 when he sustained a sudden blow ot the arm and neck. He reports that while on active duty and shortly after discharge, he experienced intermittent shooting pains in the right arm and neck. He received treatment and the ER doctor diagnosed it as a muscle strain/tear. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. 2. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. THE EXAMINER SHOULD ALSO BE AWARE THAT IN RENDERING AN OPINION, IT MUST "CONTAIN NOT ONLY CLEAR CONCLUSIONS WITH SUPPORTING DATA, BUT ALSO A REASONED MEDICAL EXPLANATION CONNECTING THE TWO." SEE NIEVES-RODRIGUEZ V. PEAKE, 22 Vet. App. 295, 301 (2008). Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. (Continued on the next page) 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. Garrett Morales Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.