Citation Nr: 21076062 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-23 312 DATE: December 22, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1975 to February 1980 and from December 2003 to November 2004. He also had service in the United States Navy Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board denied the claim of entitlement to service connection for a cervical spine disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted a Joint Motion to vacate and remand the matter to the Board. In September 2020, the Board remanded the appeal for further development. The case has been returned to the Board for consideration. Entitlement to service connection for a cervical spine disability is remanded. The Veteran contends that his current cervical spine disability stems from an injury that occurred during a period of active duty service, from December 2003 to November 2004. Specifically, the Veteran argues that although he had a preexisting cervical spine disability stemming from an October 2003 motor vehicle accident (MVA), he was nevertheless medically cleared to deploy at the beginning of his second period of service and injured his neck while lifting a tank tow bar during his mobilization. See NOD (February 2015). For reasons discussed below, the Board finds that remand is necessary. As an initial matter, it is noted that the June 2019 Board decision found that the presumption of soundness does not apply to the relevant period of active service for the period from December 2003 to November 2004. Absent an entrance examination and the in-service manifestation or incurrence of his cervical spine disability, the presumption of soundness is not for application. See Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012) ("[B]efore the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service."); Horn v. Shinseki, 25 Vet. App. 231, 236 (2012) ("In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service."); Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) ("In the absence of [an entry] examination, there is no basis from which to determine whether the claimant was [sound at entry]."); Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (presumption of soundness "attaches only where there has been an induction examination in which the later-complained-of disability was not detected"). Here, the competent, credible evidence of record shows the Veteran's cervical spine disability preexisted his second period of active service. Private medical evidence reflects the Veteran sought treatment after he was involved in a car accident in October 2003 in which he sustained a whiplash type neck injury. A November 2003 private MRI report of the cervical spine revealed mild disc desiccation and annular tear. A December 2003 private medical record, dated 2 weeks prior to reenlistment, noted a follow-up visit after a recent accident during which the Veteran reported his pain subsided considerably. However, the physician recommended the Veteran continue light activities at work with reevaluation in one month to determine whether he was able to resume his full work duties. VA examination report dated in January 2015, reflects the Veteran reported that he initially injured his neck in a car accident while he was in the Reserves. See C&P Exam (January 2015). Next, the Veteran's service treatment records (STRs) do not contain an entrance examination for his second period of active service dated from December 2003 to November 2004. A December 6, 2003 Reserve STR notes the Veteran was assessed with status post MVA with cervical spine injury and an examination was deferred. It was noted that the Veteran sustained a cervical spine whiplash injury on October 12, 2003 and was followed by a private physician who signed a note restricting the Veteran to light activity only. A Report of Medical History, dated December 29, 2003, is included in the Veteran's STRs. On the report, the Veteran wrote that he was treated in an emergency room following a car accident. However, the Veteran denied that he had any back problems or recurrent back pain on that report. Additionally, in a contemporaneous December 2003 Pre-Deployment Health Assessment, which is the equivalent of a medical history prepared by the Veteran and not an examination report, the Veteran indicated that his health was "very good," and he did not have any medical problems. In this case, although STRs contain some Reports of Medical Examination, it does not appear that the Veteran was examined prior to entering active duty in December 2003. Although generally it is presumed that an entrance examination is provided prior to all periods of active duty service, there is no evidence suggesting that is the case here. In addition, there is no evidence to suggest that STRs are not complete or that a Report of Medical Examination from the Veteran's second period of active service has been lost or is missing. Given the foregoing, the Board finds the Veteran had a cervical spine condition prior to his reentry into active service in December 2003. Furthermore, the presumption of soundness does not attach and service connection for a cervical spine disability may be considered only on the basis of aggravation during active service. The question for the Board, therefore, is whether the Veteran's cervical spine disability was at least as likely as not aggravated by service and if so, whether any increase in severity was clearly and unmistakably due to its natural progress. A preexisting condition is presumed to have been aggravated in service where there is an increase in disability during such service, unless there is a specific finding the increase in disability was due to the natural progression of the condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Initially, the burden is on the veteran to establish an increase in severity in service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the veteran is able to demonstrate an increase in severity in service, then the presumption of aggravation attaches and the burden shifts to the VA to rebut the presumption by clear and unmistakable evidence that the worsening of the preexisting condition was due to its natural progression. Id.; see also Horn, 25 Vet. App. at 235, 238-39. A January 2015 VA medical opinion on the matter is inadequate. The opinion concluded that the Veteran's preexisting neck condition was not aggravated during active duty service. The opinion's rationale was that the Veteran was on active duty for less than one year and there was no evidence of progression or increase of severity during active duty service. The examination is inadequate because the VA examiner did not adequately address the Veteran's lay statements regarding an in-service injury. Generally, an examiner is required to address a veteran's own lay statements about his or her symptoms. See Miller v. Wilkie, 32 Vet. App. 259-60 (2020). A January 2021 VA medical opinion reflects that the Veteran's cervical spine condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale appears to be based on the medical evidence of record showing the Veteran's initial neck injury did not occur during a period of active service. The opinion instead noted that the initial neck injury occurred right before active duty, during a motor vehicle accident, in October 2003. However, the examiner stated that, while the Veteran saw improvement before reenlisting, he aggravated this injury in 2004 while on active duty and has been receiving treatment for his neck since that time. Here, the opinion is inadequate as its conclusion is incongruous with its rationale. In this regard, although the examiner appears to conclude that the cervical spine disability preexisted service and was aggravated during service, ultimately, the examiner determined that the cervical spine disability was not related to service. Moreover, the examiner used the incorrect "less likely than not" standard when addressing the likelihood of in-service aggravation of a preexisting condition, as opposed to the correct and more stringent "clear and unmistakable evidence" standard. The record reflects the Veteran presented for a VA contract examination in May 2021. He reported the onset of his neck pain was in 2004 while he was in Kuwait and loading a towbar for a tank onto the back of a Humvee. He indicated that he twisted his back the wrong way and instantly had sharp, stabbing pain in his neck and back for which he sought medical attention. It is noted that the examination report does not contain any medical opinion addressing whether the Veteran's current cervical spine disability is related to his second period of active service. Accordingly, given that the VA medical opinions discussed above are inadequate for adjudication purposes, remand is necessary for an adequate medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's cervical spine disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The clinician must address, at a minimum: (1) the Veteran's lay assertions, including his June 2014 statement regarding a tow bar injury during his mobilization in 2004, (2) his documented medical history, including private treatment records related to his October 2003 motor vehicle accident, dated shortly before entry into active duty service in December 2003, (3) STRs which include an April 2004 complaint of neck pain; a May 2004 sick slip for back pain/neck pain recommending no heavy lifting for 2 weeks and anything over 10 pounds, and; a July 2004 record noting a diagnosis of nonallopathic lesions cervical. The clinician must opine on: (a) Whether any cervical spine disability which preexisted active service (i.e., period from December 2003 to November 2004) was at least as likely as not aggravated (non-temporary increase in severity) by active service, and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. Consider the in-service injury in April 2004 in which the Veteran injured his back while carrying a tank tow bar. Explain. NOTE: The examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying disease, as contrasted with symptoms, has worsened. 2. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.