Citation Nr: 21075652 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 19-23 925 DATE: December 21, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for headaches is remanded. REASONS FOR REMAND The Veteran served in the Navy from November 1987 to December 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020 the claims were denied by the Board. The Veteran then appealed to the U.S. Court of Appeals for Veterans Claims (Court). In August 2021, pursuant to a joint motion for partial remand (JMPR), the Court vacated the October 2020 decision and remanded the matters for readjudication consistent with the motion. The claims are again before the Board for appellate review. 1. Entitlement to service connection for a cervical spine disability is denied. The VA received this claim for service connection in September 2018. The Veteran contends that he has had neck problems, continuously, since an inservice motor vehicle accident (MVA). The Board finds the July 2019 VA cervical spine examination previously relied upon by the Board in its prior decision is inadequate because the opinion relied on the absence of chronicity of care inservice, but there are numerous inservice treatment records for the neck. Specifically, the Veterans service records include July 1988 records which detail a civilian MVA in which the Veteran was rear-ended. He was treated on base for complaints of neck pain, among other things. Records associated with this treatment include a notation that the Veteran may have had a hyperextended injury to his neck which accounted for some of his complaints. Moreover, a radiology report noted a 4mm. predental space and the possibility of injury to the transverse ligament. However, a July 18, 1988 notation reports while the Veteran initially had some associated left-sided neck pain after his motor vehicle accident, the pain had "completely resolved." Moreover, on physical examination in October 1988, the Veteran had full range of motion to the neck. Nevertheless, as the July 2019 VA examination relied heavily on the lack of treatment, the Board finds that an adequate VA opinion is needed. Also, the Veteran has submitted a private medical opinion which reports the Veteran's cervical neck pain is related to his service-connected disabilities. On remand, this too, should be addressed. 2. Entitlement to service connection for headaches is remanded. The VA received this claim for service connection in September 2018. The Veteran generally contends this disorder is due to service. On his September 2019 Form 9 he reported that his headaches resulted from inservice noise exposure. As to this claim, the Board finds the January 2020 VA opinion relied upon by the Board in its prior decision is inadequate. At the examination, the Veteran reported having headaches while inservice, and was prescribed glasses. However, they did not alleviate his headaches. His current symptoms included pulsating and throbbing head pain, and pain on both sides of his head. The opinion found that the Veteran's current disability was not related to service, to include the inservice MVA, because there was no chronicity of care from the MVA to separation, or for years after separation. Yet service records indicate numerous complaints of headaches, including symptoms where his "whole head throb[bed]." Accordingly, as the examiner relied on the absence of chronicity of care and did not take into the Veteran's lay reports, the Board finds this VA opinion is inadequate, and a remand is needed for an adequate opinion. Moreover, since the Board's prior decision, the Veteran has been service-connected for a vasovagal syncope disability. Inservice medical records also detail the Veteran's syncopal disability was accompanied by headaches. On remand, the opinion should address whether the Veteran's headaches are caused and/or aggravated by his service-connected syncopal disorder. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain an addendum opinion from an available VA examiner regarding the nature and etiology of the Veteran's cervical spine disorder. The electronic claims file must be made available to the examiner. If the examiner determines that another VA examination is necessary, one should be scheduled. Based on a review of the record, and a new examination if conducted, the examiner must address the following: (a.) Whether it is as least as likely as not (a 50 percent or greater probability) that the Veteran's cervical spine disorder manifested during service or is otherwise related to service, to include the 1988 MVA? In answering this inquiry, the examiner must address the Veteran's reports of continuous neck pain since service. Additionally, the examiner should address the inservice July 1988 medical records associated with the Veteran's complaints of neck pain. The examiner must directly address this evidence in his or her opinion. The examiner is advised that the Veteran is competent to report his medical history including symptoms and treatment. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. (b.) Whether it is at least as likely as not (i.e., probability of 50 percent or higher) that any cervical spine disorder, is proximately due to or the result of any service-connected disability? (c.) If the answer to (b) is negative, whether it is at least as likely as not (i.e., probability of 50 percent or higher) that any cervical spine disorder is aggravated (i.e., permanently or temporarily worsened) by any of his service-connected disabilities? In addressing (b) and (c), the examiner should consider and discuss the November 2019 DBQ submitted by the Veteran on which a private nurse practitioner, specifically the remarks on the DBQ. reports his cervical spine disorder is aggravated by his service-related disabilities. If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Obtain an addendum opinion from a VA examiner with appropriate expertise regarding the nature and etiology of the Veteran's headaches. The electronic claims file must be made available to the examiner. If the examiner determines that another VA examination is necessary, one should be scheduled. Based on a review of the record, and a new examination if conducted, the examiner must address the following: (a.) Whether it is as least as likely as not (a 50 percent or greater probability) that the Veteran's headaches manifested during service or is otherwise related to service, to include the inservice treatment after the Veteran's 1988 MVA or inservice noise exposure? In answering this inquiry, the examiner must address the Veteran's reports of continuous headaches since service, having headaches due to inservice noise exposure, and the July 1988 inservice medical records for headaches. The examiner must directly address this evidence in his or her opinion. The examiner is advised that the Veteran is competent to report his medical history including symptoms and treatment. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it (b.) Whether it is at least as likely as not (i.e., probability of 50 percent or higher) that any headache disorder, is proximately due to or the result of any service-connected disability, to include his vasovagal syncope disability? (c.) If the answer to (b) is negative, whether it is at least as likely as not (i.e., probability of 50 percent or higher) that any headache disorder is aggravated (i.e., permanently or temporarily worsened) by any of his service-connected disabilities, to include his vasovagal syncope disability? In addressing (b) and (c), the examiner should consider and discuss the inservice July 1988 medical record associated with the Veteran's treatment for syncope where it was detailed his black outs were accompanied by headaches. If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.