Citation Nr: 21005711 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 09-32 168A DATE: February 2, 2021 REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected chronic lumbar syndrome, status post L4-5 lumbar discectomy, and chondromalacia of both knees, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from July 1979 to September 1996. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2008 Department of Veterans Affairs (VA) rating decision. In May 2014 and May 2018, the case was remanded to the Regional Office (RO) for additional development. A May 2019 Board decision denied service connection, and the Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC). A March 2020 CAVC Order granted a February 2020 Joint Motion for Remand (JMR), thereby vacating the Board’s May 2019 decision and remanding the matter to the Board for action consistent with the terms of the JMR. Then, in August 2020, the matter was remanded for additional development. The August 2020 Board remand directed that an addendum VA opinion (with in-person examination, if necessary) be obtained addressing secondary service connection and aggravation of the cervical spine disability. (Prior VA opinions of April 2017 and February 2019 were deemed inadequate.) The September 2020 (unfavorable to the Veteran’s claim) opinion received is insufficient to decide the claim. The September 2020 opinion appears deficient for some of the same reasons found by the parties to the JMR regarding the February 2019 opinion. The September 2020 consulting physician identified the Veteran’s current diagnoses as cervical spondylosis and cervicalgia, which is similar to that found by the 2019 VA examiner (who noted imaging showing arthritis of C5-C6 with spondylosis and gave a current diagnosis of arthritis of the C5-C6 with radiculopathy). The rationale for the September 2020 examiner’s negative nexus conclusion is that there is a “paucity” of peer-reviewed medical evidence that the service-connected disabilities were in any way “responsible” for the cervical spine spondylosis or cervicalgia, and that the “same goes for aggravation” as there is a “paucity of data to support this, and the weight of the medical community again appears against such a contention.” This rationale does not satisfy the concern of the parties to the JMR, who noted that the 2019 examiner did not address the severity of the Veteran’s disability “as to why [emphasis added] his current condition reflected the natural progression of the disability” (the parties questioned whether the examiner even reviewed the relevant records). As an example, the parties pointed to an August 2008 MRI showing abnormal disc extrusion of the C5-6 causing moderate spinal stenosis and a January 2018 MRI showing a large right disc protrusion at C3-C4, uncovertebral joint hypertrophy on the left at C5-C6, and mild spinal canal stenosis at C3-C4 and C4-C5. Additionally, since the September 2020 VA opinion, the Veteran’s attorney submitted additional evidence and argument in October 2020. He asserted that the September 2020 opinion was deficient because the study (about causes of neck pain) cited by the examiner did not pertain to the matter at hand. Also, the attorney provided citations to two medical publications to refute the examiner’s conclusion about the lack of peer-reviewed medical literature on the relationship between the lumbar and cervical spine disabilities. The Board is unable to assess the probative value and applicability of these medical articles on the issue before it. For the foregoing reasons, the Board must remand the case for a clarifying medical opinion. The matter is REMANDED for the following: Arrange for the Veteran’s record to be forwarded to an appropriate clinician (in orthopedics) for review and a medical advisory opinion regarding the nature and etiology of his cervical spine disability. [If an in-person examination is deemed necessary for an opinion sought, it should be arranged.] The consulting provider is asked to respond to the following: (a). Identify, by diagnosis, each cervical spine disability found or shown by the record during the pendency of the appeal (from the filing of the claim in May 2007 to the present). See, e.g., the findings of the VA examiners in April 2017, February 2019, and September 2020, and the August 2008, September 2009, and January 2018 cervical spine MRI findings. (b). Regarding each diagnosed entity, opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability is proximately due to or aggravated (worsened beyond its natural progression) by the Veteran’s service-connected chronic lumbar syndrome, status post L4-5 discectomy, and/or chondromalacia of both knees. The consulting provider should reconcile the opinion of the September 2020 examiner, who asserted there was a “paucity” of peer-reviewed medical evidence that the service-connected disabilities were in any way [emphasis added] “responsible” for the cervical spine spondylosis or cervicalgia, and that the “same goes for aggravation” as there was a “paucity of data to support this, and the weight of the medical community again appears against such a contention,” with the October 2020 argument by the Veteran’s attorney, who cited to two specific medical publications (both in 2018) for the proposition that there is a relationship between conditions of the lumbar spine and cervical spine. (c). If it is found that a cervical spine disability has been aggravated beyond its natural progression by a service-connected disability (even if the impact was minimal), identify the degree of worsening that resulted from the contribution to aggravation by the service-connected disability, if medically ascertainable. (If unable to establish a baseline for the cervical spine disability prior to the aggravation, explain why that is so.) (d). If it is found that a cervical spine disability was not caused or aggravated by a service-connected disability, identify the etiology for the disability that is considered to be more likely, and explain why that is so. Similarly, if it is found that a current cervical spine disability reflects the natural progression of the disability, explain why that is so. (For example, what explains the changes of the disability reflected by MRIs of the cervical spine in August 2008, September 2009, and January 2018?) The consulting provider must provide complete and detailed rationale for all opinions, citing to relevant evidence, supporting factual data, and medical literature, as deemed appropriate. If an opinion sought cannot be given without resort to mere speculation, explain whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (additional facts are required, or the examiner lacks the requisite knowledge or training). If such is the case, identify the further testing/specialist’s opinion/other information needed to provide the requested opinion. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.