Citation Nr: 21077559 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 11-33 683 DATE: December 30, 2021 ORDER Entitlement to service connection for a cervical spine disorder, to include scoliosis and cervical strain is granted. REMANDED Entitlement to an initial increased rating in excess of 10 percent for posttraumatic stress disorder (PTSD), prior to July 11, 2016, is remanded. Entitlement to service connection for a right arm neurological disorder is remanded. Entitlement to service connection for a left arm neurological disorder is remanded. Entitlement to service connection for a left leg neurological disorder is remanded. FINDING OF FACT The preponderance of the evidence supports a finding that the Veteran's cervical spine disorder was incurred in active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disorder, to include scoliosis and cervical strain, are met. 38 U.S.C. §§ 1110, 11311, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July to November 1989, from February to April 1990, from August 2002 to August 2003, from December 2006 to December 2007, and from May 2009 to June 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in November 2016. A January 2021 letter informed the Veteran that the VLJ who conducted the November 2016 hearing was no longer available to adjudicate his claims and he was afforded an opportunity for a new hearing. In a response received in February 2021, the Veteran indicated that he did not wish to appear at another Board hearing. Thus, the Board will proceed with the adjudication of the appeal. The Veteran's appeal was last before the Board in March 2021. The Board finds there has been substantial compliance with the remand directives associated with his claim of entitlement to service connection for a cervical spine disorder. Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran has not raised any issues with VA's duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to service connection for a cervical spine disorder, to include scoliosis and cervical strain. The Veteran contends that his cervical spine disorder is related to an injury he sustained during active duty service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). August 2010 and June 2021 VA examination reports show the Veteran has a current diagnosis of cervical scoliosis and cervical strain. During service, the Veteran was seen for complaints of neck pain. Thus, the remaining question is whether the current disability is related to the Veteran's service. The evidence against the claim includes the June 2021 VA medical opinions, which concluded that the Veteran's cervical scoliosis and cervical strain were less likely than not related to service. The examiner indicated that the Veteran did not have a diagnosis of cervical scoliosis, only subjective complaints of neck pain and therefore, the claimed condition was not related to service. Additionally, the examiner noted that the Veteran's cervical strain was not related to service as his reports of neck pain during service were acute only, with no evidence of chronicity of care for neck or cervical problems from 2005 to 2021. The examiner further noted that there was no evidence that the Veteran's neck problem pre-existed service or was otherwise aggravated beyond its natural progression by service. The evidence in favor of the claim includes service treatment records that note the Veteran's reports of neck and shoulder pain in 2005 and reflect the Veteran reported this pain began two years prior. Service treatment records also reflect the Veteran continued to report neck or upper back pain until service separation in 2010. Additionally, a May 2011 letter from the Veteran's private physician notes the Veteran's treatment for complaints of neck pain since 2003 and note that the onset of this pain was over the course of his military service. VA and private treatment records from 2011 to 2021 continue to note reports of neck pain. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current cervical spine disorder arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a cervical spine disorder to include scoliosis and cervical strain is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an initial increased rating for PTSD in excess of 10 percent disabling prior to July 11, 2016, is remanded. Here, in the Board's March 2021 Remand, it was noted that efforts were to be made to obtain private treatment records from Dr. S.W. related to the Veteran's psychiatric treatment completed in 2013 as the Veteran reported that these records reflect his psychiatric symptoms at the time. Review of the claims file indicates that the Veteran was sent notice to complete a VA Form 21-4142 to obtain these records however, the Veteran did not return the requested information to retrieve the records. As the Board is remanding the appeal for additional development, the Board is inclined to provide the Veteran with an additional opportunity to submit the requested information as these records are pertinent to the claim. Thus, a remand is required to attempt to obtain these records. The Veteran is reminded that the VA's duty to assist is not a one-way street, and that failure to provide necessary documentation may result in denial of his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 2. Entitlement to service connection for a right arm neurological disorder is remanded. 3. Entitlement to service connection for a left arm neurological disorder is remanded. 4. Entitlement to service connection for a left leg neurological disorder is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2021, the Board remanded the appeal for a new VA examination. The examiner was specifically instructed to conduct an electromyography (EMG) test or give an explanation as to why testing was not relevant. Review of the June 2021 peripheral neuropathy VA examination report notes that an EMG was not done and the examiner did not provide a reason as to why testing was not completed or explain why an EMG was not required. Thus, remand is required to comply with previous remand directives. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. S.W. from Clinton, Connecticut. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. After the above development, scheduled the Veteran for a VA neurological examination by an appropriate clinician. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be reviewed by the examining clinician and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated diagnostic tests and studies, to include EMG and any other relevant studies, should be accomplished (with all results made available to the requesting clinician prior to the completion of his or her report), and all clinical findings should be reported in detail. The clinician should clearly identify all neurological disorders, to include radiculopathy, neuropathy, and pain resulting in functional impairment of earning capacity currently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). If the examiner determines an EMG or other relevant studies is not needed, the examiner must explain why such testing is not relevant. The examiner is asked to provide a response to the following: (a.) Is any neurological disorder of the arms and left leg at least as likely as not related to service? (b.) Is it at least as likely as not that any neurological disorder of the arms and left leg (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (c.) Is any neurological disorder of the arms and left leg at least as likely as not proximately due to any service-connected disabilities? (d.) Is any neurological disorder of the arms and left leg at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected disabilities? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. After completing the requested actions, and any additional actions deemed warranted, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative must be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, 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.