Citation Nr: 21005793 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-54 382 DATE: February 2, 2021 REMANDED Entitlement to service connection for cervical spine degenerative joint disease is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1986 to June 1991. This matter is on appeal from a March 2015 rating decision. The Veteran testified before the undersigned Veteran’s Law Judge at a July 2019 Board of Veterans’ Appeals (Board) Hearing. A transcript of the hearing is associated with the claims file. The claim was remanded by the Board in January 2020. 1. Entitlement to service connection for cervical spine degenerative joint disease is remanded. In January 2020, the Board remanded the claim for a VA examination and an etiology opinion. VA medical opinions were obtained in March 2020. However, the examiner did not provide a sufficient rationale for either the direct service connection opinion or the secondary service connection opinion. The examiner further did not consider the Veteran’s lay statements regarding onset of symptoms, to which he is competent to attest, and the examiner must consider. See, e.g., March 2020 VA direct etiology opinion (“Service records when veteran was active duty do not indicate a service-connected cervical spine injury. The cervical spine injury is not related to the service-connected lumbar spine degenerative joint disease. Veteran has a service-connected lumbar spine degenerative joint disease. There is no medical evidence that shows the service connected lumbar spine has aggravated the non-service-connected cervical spine injury.”); March 2020 VA secondary etiology opinion (“It is not as least as likely as not that the Veteran's cervical spine condition underwent any incremental increase in disability due to the service connected of back disability. No additional impairment of the cervical spine which was not service connected underwent incremental increase d/t the back disability. No medical evidence is found to contain an injury or treatment of the cervical spine.”). For these reasons, the Board finds the opinions wholly inadequate. The claims must therefore be remanded for new etiology opinions. The matters are REMANDED for the following action: 1. Obtain new etiology opinions from a new examiner for the cervical spine condition. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. After reviewing the claims folder and examining the Veteran, the examiner is specifically instructed to provide the following information: (a) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s cervical spine condition BEGAN IN or is related to his time in the service, yes or no? (b) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s cervical spine condition was CAUSED BY HIS SERVICE-CONNECTED back disability, yes or no? (c) Is it “at least as likely as not (50 percent probability or greater)” that the Veteran’s cervical spine condition underwent any incremental increase in disability, regardless of its permanence, due to the service-connected back disability, yes or no? • The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Additional disability due to flareups of musculoskeletal disabilities, even if it cannot be quantified, or an incremental increase in pain might constitute an increase in disability, or aggravation, for the purposes of secondary service connection. • The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. • The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. (d) The examiner is specifically instructed to address and consider the Veteran’s lay statements made at the Board hearing. At the July 2019 Board Hearing, the Veteran stated that in 1987, while at the National Training Center in California, he was training with National Guardsmen. He was in a four-deuce mortar carrier getting bounced around in the back of the vehicle, when a fellow serviceman kicked him in the back of the head and caused his face to hit the driver’s panel. He injured his nose, which was documented in his service treatment records. However, he is asserting that that same incident caused injury to his neck. • The examiner must specifically address as it pertains to the Veteran’s lay statement: i. Are the Veteran’s assertions consistent with medical knowledge or implausible? ii. Are the Veteran’s report about symptoms align with how the disease or disability is known to develop? iii. Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). • Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.