Citation Nr: 21075647 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 13-21 977 DATE: December 21, 2021 ORDER Entitlement to service connection for a cervical spine disability is granted. REMANDED Entitlement to service connection for a neurological disability of the upper extremities is remanded. FINDING OF FACT Resolving reasonable doubt in the favor of the Veteran, his cervical spine disability is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1980 to July 1984 and August 2008 to September 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran testified before a Veterans Law Judge. A transcript of that hearing is of record. The Veterans Law Judge who presided over that hearing is no longer with the Board. The Veteran was sent a letter notifying him of that fact, and advising him of his right to have a new hearing before a current member of the Board before his claim was decided. The Veteran did not respond to that letter requesting an additional hearing. As such, there is no bar to proceeding with the appeal at this time. This case was previously before the Board. In a May 2020 decision, the Board, in pertinent part, denied entitlement to service connection for a cervical spine disability and for a bilateral upper extremity neurological disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 Order, the Court granted a Joint Motion of the parties, vacated the Board's decision with respect to the issues identified above, and remanded the case to the Board for action consistent with the Joint Motion. The appeal was remanded for additional development in June 2021. The case has now been returned to the Board for further appellate action. Service Connection Cervical Spine Disability The Veteran asserts that his cervical spine disability is the result of his active service. Service treatment records (STRs) show that the Veteran documented going to sick call for muscle aches on his August 2009 Post-Deployment Health Assessment. An April 2011 treatment note documented the Veteran's reports of chronic neck pain that he described as sharp and constant. In August 2011, the Veteran complained of neck pain that radiated to his upper extremity. An August 2011 radiology report of the cervical spine reveled that the Veteran had degenerative disc disease (DDD) and osteoarthritis at the C5 and C6 disc space level. A December 2011 treatment note documented that the Veteran used medication to treat pain and muscle spasms in his neck. In April 2012, the Veteran reported that his neck pain radiated to the left shoulder blade area. At that time, he was given a steroid injection and medication. In February 2013, the Veteran was placed on a permanent physical profile for chronic neck pain. A June 2013 X-ray of the cervical spine revealed that the Veteran had mild narrowing of the intervertebral disk spaces between C4 and C7 and mild degenerative changes at the apophyseal joints. At that time, a VA staff physician noted that a major finding was the strengthening lordosis associated to major spasm that would aggravate the pain and could produce impingement. In September 2013, the Veteran was again seen for complaints of neck pain. In January 2014, the Veteran was afforded a VA examination for neck conditions. At that time, the Veteran reported that he began having neck pain, for which he sought medical attention, in 2008 during his deployment to Iraq. The Veteran also reported that his pain had continued since that time. The VA examiner noted that the Veteran had a current diagnosis of degenerative arthritis of the cervical spine. However, the VA examiner failed to provide an etiological opinion. In November 2014, the Veteran again presented with complaints of neck pain. Subsequently, in December 2014, magnetic resonance imaging (MRI) of the Veteran's cervical spine revealed: mild to moderate spondylitic changes of the cervical spine from C3 through C6, mild central canal stenosis with moderate left foraminal encroachment at C5 to C6, and reversal of the normal cervical lordosis. In June 2013, the Veteran reported that he had longstanding neck pain since 2008 that was associated with carrying heavy objects. In August 2015, the Veteran was referred for a pain consultation due to neck pain. Subsequently, in September 2015, the Veteran underwent a cervical medial branch block on the left and the right at levels C4 to C7. Additionally, in September 2015, the Veteran received neck and shoulder injections. In August and November 2017, the Veteran collectively reported that he had pain and cramps in his neck. In March 2018, the Veteran reported that he had sharp and stabbing neck pain that was worsened with walking, standing, and bending over. In July 2019, the Veteran was afforded a VA examination for neck conditions. At that time, the Veteran stated that the onset of his cervical spine disability was November 2010. The VA examiner noted that the Veteran had a current diagnosis of degenerative arthritis of the spine, intervertebral disc syndrome, and spinal stenosis. However, the VA examiner assessed that the Veteran's cervical spine disability was less likely than not incurred in or caused by his active service. The VA examiner reasoned that they were unable to locate medical records from the period in 2008 which listed the complaints. In a December 2019 addendum opinion, a VA examiner again opined that the Veteran's cervical spine disability was less likely than not incurred in or caused by his active service. The VA examiner reasoned that the Veteran's STRs were negative for any diagnosis of cervical degenerative arthritis, IVDS, upper extremity radiculopathy, or stenosis. In a July 2021 addendum opinion, a VA examiner found that the Veteran's cervical spine disability was less likely than not incurred in or caused by his active service. The VA examiner reasoned that the Veteran's medical records did not note evaluation, treatment, or diagnosis of a cervical spine disorder on active duty. The VA examiner also stated that the Veteran was not capable of diagnosing the medical condition related to his reported symptoms. Further, the VA examiner found that there was no objective medical evidence noted showing a link between the Veteran's current diagnosis and his military service. The Board finds that the July 2019, December 2019, and July 2021 VA opinions are inadequate for adjudication purposes. In this regard, those opinions relied on the absence of an in-service diagnosis to draw their negative conclusions. Additionally, the examiners collectively failed to address the Veteran's lay statements regarding the onset and continuation of his symptoms, which are supported by the medical evidence of record. As those opinions are inadequate, they cannot serve as the basis for a denial. The Board notes that for certain chronic diseases, set forth in 38 C.F.R. § 3.309(a), such as arthritis, continuity of symptoms is required when the condition noted in service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303(b), 3.309(a), (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Board finds that the Veteran has competently reported that his symptoms of neck pain began in service and have continued since that time. Moreover, the Board finds the Veteran's statements to be credible. Additionally, the Board finds that the Veteran's statements of continuity of symptoms are sufficient to establish a link between his current diagnosis of a cervical spine disability and his in-service complaints of muscle aches. The Board highlights that the Veteran's assertions of continued neck pain, since his deployment, are clearly documented in his routine treatment notes since April 2011. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for a cervical spine disability is warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran asserts that his neurological disability of the upper extremities is related to his active service, or in the alternative, secondary to his cervical spine disability. In light of the grant of service connection for a cervical spine disability discussed above, the Board finds that a VA examination to determine the nature and etiology of the Veteran's upper extremity neurological impairment is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any currently present upper extremity neurological impairment. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. Based on the examination results and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present upper extremity neurological impairment had its onset during the Veteran's active service, or is otherwise etiologically related to such service. The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present upper extremity neurological impairment was caused or aggravated (chronically worsened) by a service-connected disability, to include the cervical spine disability granted in this decision. The examiner must provide a complete and detailed rationale for all opinions expressed. 2. Confirm that all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. 3. Then, readjudicate the remaining issue on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, Associate 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.