Citation Nr: A21020147 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200520-85508 DATE: December 16, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1985 to September 2015. In May 2020, the agency of original jurisdiction (AOJ) issued the rating decision on appeal, which found that new and relevant evidence had been received and denied the Veteran's claim for service connection for a cervical spine disability based on the evidence of record at the time of that decision. In the subsequent May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal. The May 2020 rating decision found that new and relevant evidence had been received to readjudicate the claim for service connection for a cervical spine disability, now characterized as degenerative arthritis of the cervical spine with first degree retrolisthesis C5/C6. This is a favorable finding by the AOJ and the Board will proceed to address the claim on the merits. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). The Board notes that there is a separate AMA appeal stream of the Veteran's claim for an earlier effective date for the 70 percent evaluation of post-traumatic stress disorder (PTSD) with insomnia prior to August 19, 2020. That appeal will be addressed in a separate decision. Entitlement to service connection for a cervical spine disability is remanded. The issue of entitlement to service connection for degenerative arthritis cervical spine with first degree retrolisthesis C5/C6 requires remand to correct duty to assist errors that occurred prior to the May 2020 rating decision on appeal. In particular, the Board finds that although the AOJ obtained medical opinions in February 2019, January 2020, and April 2020, these opinions are inadequate and thus corrective action is necessary. The Veteran contends her cervical spine disability is the result of her military duties related to her military occupational specialty (MOD) working in human resources and that she has experienced continuous symptoms of pain since her service. In the alternative, the Veteran contends her cervical spine disability is secondary to her service-connected left shoulder strain with degenerative arthritis in that she over-uses her cervical spine to adjust for the left shoulder condition, thus causing or aggravating her cervical spine disability. The Veteran was afforded VA examinations, but the Board finds the resulting opinions are inadequate or incomplete. The February 2019 VA examiner opined that the Veteran's cervical spine disability was less likely than not incurred in or caused by her service primarily based on a finding that the Veteran's service records did not show any in-service treatment, complaints, or diagnosis of neck pain. The rationale is flawed because there is at least one in-service treatment, dated in March 1995, where the Veteran complained of head and neck pain with a physician noting that she had a tendency to "swan neck." The examiner also did not discuss the Veteran's general MOS duties and her lay statements of continuous neck pain since service. Thus, the Board finds the VA examiner's opinion to be inadequate and incomplete. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding that when an examiner fails to address lay evidence, and the Board does not find the Veteran not credible or not competent to offer that evidence, the proper remedy is for VA to obtain a new examination). The January 2020 and April 2020 VA examiners did not cure these defects, but rather focused the opinions on her secondary contentions finding that the Veteran's cervical spine disability was less likely than not caused (January 2020 opinion) or aggravated (April 2020 opinion) by her left shoulder disability. The Board finds the opinions have an inadequate or inconsistent rationale because on the one hand the examiners attribute the Veteran's neck condition to overuse, but on the other hand fail to address the Veteran's statements that her overuse of the cervical spine was perpetuated by her left shoulder condition. Neither examiner addressed the Veteran's statements to the February 2019 examiner that her cervical spine pain was aggravated by elevation of her left arm or by swinging her arms during ambulation. Thus, the statements in the examination reports appear internally inconsistent and the rationale was therefore inadequate a pre-decisional duty-to-assist error. Accordingly, the Board finds that all three VA opinions of record regarding the etiology of the Veteran's cervical spine disability, including on a direct basis and as secondary to a service-connected condition, were inadequate and the Veteran should have been afforded a new VA examination. Corrective action is therefore appropriate to address this pre-decisional duty-to-assist error. Remand of the claim is also appropriate to obtain outstanding treatment records. VA treatment records show that potentially relevant private treatment records were scanned into the Veteran's VA medical file. See September 2019, October 2019, November 2019, and January 2020 VA treatment records (noting records pertaining to physical therapy at Carolina Women's Physical Therapy and Wellness scanned into system). However, these records are not in the Veteran's claims file. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file all Carolina Women's Physical Therapy and Wellness treatment records scanned into the Veteran's medical file but not associated with the Veteran's claims file. 2. Obtain a VA medical opinion from an appropriate medical professional with respect to the Veteran's claim for service connection for a cervical spine disability, characterized as degenerative arthritis of the cervical spine with first degree retrolisthesis C5/C6. The need for an in-person examination is left to the discretion of the clinician providing the opinion. The clinician is asked to: (a.) Identify all current cervical spine disabilities experienced by the Veteran at any time since September 2015, to include cervical spine pain causing functional impairment of earning capacity (which is a disability for VA purposes); (b.) Opine whether it is at least as likely as not that the Veteran's cervical spine disability (1) had an onset in service; (2) manifested to a compensable degree within a year of separation from service (September 2015); or (3) is otherwise related to service; (c.) Opine whether it is at least as likely as not that any cervical spine disability found is caused or aggravated by the Veteran's service-connected left-shoulder strain with degenerative arthritis. The clinician should consider all medical and lay evidence of record and offer a complete rationale for each opinion expressed. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from a service-connected condition. The examiner should specifically address the March 22, 1995 in-service Report of Medical Examination which states that the Veteran displays "swan neck" posture. Additionally, the examiner should specifically address the Veteran's lay reports of cervical spine pain beginning in service and continuing after her separation from service; the Veteran's lay reports of experiencing repetitive trauma caused by ruck marches and rappelling during her service; the Veteran's lay reports of cervical spine pain being aggravated by elevation of her left arm and swinging arms during ambulation; and the Veteran's lay reports of overusing her cervical spine as a result of adapting to her left shoulder condition. The examiner should also specifically discuss the Veteran's MOS and its related duties, and whether it played any role in the development of her cervical spine disability. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject her contentions). 3. Thereafter, and after any further development deemed necessary, the issue on appeal should be readjudicated with consideration of all evidence of record. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David A. F. Litvak 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.