Citation Nr: 21005281 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-39 579 DATE: February 1, 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 Army from August 2007 to December 2007, November 2008 to October 2013, and from April 2018 to April 2019, with service in Iraq, and is currently a member of the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Veteran presented for a VA examination in June 2017, after which the examiner opined that the Veteran’s cervical spine disability was not related to service. The Board finds this opinion inadequate, as the examiner did not have all of the relevant documents in order to properly opine on the matter, noting subsequent relevant medical records after the examination. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate or incomplete factual premise is not probative). Additionally, the Board notes that subsequent to that examination, the Veteran was a afforded a Board hearing, and those statements have not been considered as well. An examination is inadequate if it does not consider all the relevant evidence of record, including lay statements. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the Board finds that the record has raised the issue of a neck injury as secondary to a shoulder injury and this theory of entitlement should be explored on remand. Additionally, the Board notes that that the Veteran presented for another VA examination in August 2019. As this examination did not opine as to the relationship of the Veteran’s neck injury with his active service, it is rendered inadequate as a basis for establishing a medical nexus. Finally, it appears that the Board is not is possession of all of the service personnel records. On remand they should be secured, along with all outstanding service treatment records, including those related the Veteran’s reported motor vehicle accidents (MVAs) in 2010 during active service and in 2018 during his National Guard service. The matters are REMANDED for the following action: 1. Obtain all outstanding service treatment records and service personnel records, to include: (a) all records from Evans Army Community Hospital; (b) all records from Madigan Army Medical Center; (c) all records from Fort Carson (Evans) Army Community Hospital, to include from the Veteran’s 2010 and July 2018 MVAs; (d) all National Guard records (service beginning October 23, 2013); and (e) all service personnel records. If such records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Obtain all outstanding VA treatment records. 3. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records, to include any treatment at Kaiser Permanente, Riverside, California. 4. Then obtain an addendum opinion from an examiner other than the June 2017 and August 2019 VA examiners to address the etiology of the Veteran’s cervical spine disorder. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. The examiner should address the following: (a.) Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed cervical strain had its onset in service or is otherwise related to service, to include as the result of the cumulative impact of his duties. In addressing this question please discuss the Veteran’s August 2020 Board testimony that he: (1) was in a MVA during active duty (around December 2010) that injured his neck and required physical therapy at Fort Carson ; (2) had a subsequent MVA accident years later while on National Guard duty (July 2018) that aggravated the injuries from the initial MVA; (3) participated in “ruck” exercises during service, which placed more strain on his neck which, over time, caused injury; and (4) has pain that started as a result from the initial MVA, continuing through subsequent MVA and up until the present as a result of his injuries. In addressing this question, the examiner must assume items (a)(3) - (a)(4) as true, even despite the absence of “objective documentation.” Please also consider the lay statements from fellow service members noting the Veteran’s in-service injuries and the pain involving his shoulder and neck. See November 2016 VA Forms 21-4138. (b.) Please state whether a nexus between the Veteran’s cervical spine disorder and service is medically consistent with the symptomatology reported by the Veteran in items (a)(3) - (a)(4) above and the November 2016 lay statements. (c.) Please also opine as to whether it at least as likely as not (50 percent probability or more) that the Veteran’s cervical strain is (1) proximately due to or (2) has been aggravated (worsened beyond natural progression) by his service-connected left shoulder strain disability. In addressing this question, please note that there is no temporal requirement that the primary condition (left shoulder strain) be service-connected, or even diagnosed, at the time the secondary condition (cervical strain) is incurred, and reliance on this fact will render any opinion inadequate. Please note that the Veteran’s statements may not be discounted solely on the lack of confirmation in the medical records. Please also be advised any negative opinion premised solely on an absence of treatment will be returned as inadequate. If the Veteran’s reported history is discounted, the examiner must provide a reason for doing so. A robust rationale is requested for any opinion furnished. If unable to provide an opinion, please indicate whether there is any additional evidence that would enable you to do so, or whether the inability to opine is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.