Citation Nr: 21006924 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 12-11 313A DATE: February 5, 2021 ORDER Entitlement to service connection for a neck disability, to include as due to service-connected left radial fracture residuals is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s neck disability is not secondary to service-connected left radial fracture residuals, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a neck disability due to service or service-connected left radial fracture residuals are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1977 to July 1980. In July 2020, the Board remanded the issues below on appeal for further development, and the case has since been returned to the Board. The Board finds that with regard to the issue of entitlement to TDIU, the AOJ has not substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of nonservice-connected condition. 38 C.F.R. § 3.310 (a)-(b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Entitlement to service connection for a neck disability, to include as due to service-connected left radial fracture residuals The Veteran contends that his neck disability is the result of his active service, to include as due to his service-connected left radial fracture residuals. Service treatment records are silent for any complains, diagnosis, or treatment of a neck disability. A November 2014 VA emergency department report includes an impression of chronic left arm and neck pain from degenerative joint disease and previous radial nerve injury. During his June 2015 hearing, the Veteran testified that he has neck issues due to the nerve damage caused by his service-connected left radial fracture residuals. In April 2019, as required by a March 2018 Board remand, the Veteran attended a VA Neck Conditions examination. The examiner diagnosed degenerative arthritis of the spine, degenerative disc disease, and left upper extremity radiculopathy. He opined that it was less likely than not caused by active service with a rationale stating: Records are silent for any in-service complaints of neck pain or injury. The first complaint found in records was when the Veteran seen by Ortho on 8/14/15 for cervical degenerative joint disease with probable degenerative disk symptoms with left upper extremity radiculopathy from spondylosis. There is no relation between the noted head injury and cervical spine conditions as there were no complaints of neck pain found in service. Therefore, the Veteran’s cervical spine DDD, DJD and upper extremity radiculopathy are less likely than not incurred in service. He also opined that it was less likely than not proximately due to or aggravated by his service-connected upper extremity radiculopathy with a rationale stating: Headaches are not medically known to cause cervical spine degenerative disc disease, cervical DJD and upper extremity radiculopathy. Therefore, the diagnosed DDD, DJD and radiculopathy are less likely than not proximately due to the service connected headache disability. Cubital tunnel syndrome are not medically known to cause cervical spine degenerative disc disease, cervical DJD and radiculopathy. Therefore, the diagnosed DDD, DJD and upper extremity radiculopathy are less likely than not proximately due to the service connected cubital tunnel syndrome. Headaches are not medically known to cause aggravation to cervical spine DJD, DDD or upper extremity radiculopathy. These are separate conditions that are unrelated. Cubital tunnel syndrome are not medically known to cause aggravation to cervical spine DJD, DDD or upper extremity radiculopathy. These are separate conditions that are unrelated. In September 2020, an addendum opinion was provided. The examiner opined that “The veteran's cervical spine disease, to include DJD and DDD is not due to or caused by the veteran's left elbow/residuals of forearm Fx and cubital tunnel conditions.” The rationale provided stated: Degenerative spine disease is a natural aging process with chronic inflammation of the articular surfaces of the facets. Additionally, DDD is is due to natural disc desiccation with chronic inflammation of the intervertebral spaces. There is no diagnosis of radiculopathy, although stated on the DBQ. An EMG performed 12/17/10 is affirmative for ulnar impingement at the elbow consistent with cubital tunnel syndrome. There are no objective findings on the DBQ, only subjective. The complaints are consistent with the EMG findings, and not a radiculopathy. There is no anatomical or physiological mechanism by which the elbow conditions could impact the neck either as to cause or aggravation. There is no "retrograde" pathology and arthritis or a condition of one joint does not cause arthritis of another joint or the cervical spine. This is accepted medical knowledge and practice, supported by standard textbooks, such as Wheeless. Therefore, it is less likely than not that the veteran's cervical spine condition is due to the veteran's elbow conditions, to include DJD and cubital tunnel syndrome. The same rationale applies to aggravation. There is no evidence of aggravation of the veteran's cervical spine disease, due to any cause, including the veteran's left elbow and forearm conditions to include cubital tunnel syndrome. The natural history of degenerative spine disease is worsening, commonly leading to surgical intervention after a prolonged treatment course. While the remaining evidence of record indicates complaints and treatment for the Veteran’s cervical spine condition, none discuss its etiology. Based on the foregoing evidence of record, the Board finds that service connection is not warranted on a direct or secondary basis. In this regard, the Board finds the VA opinions of record the most probative evidence of record as to the etiology of the Veteran’s cervical spine condition because they are based on an accurate medical history and provides an explanation that contain clear conclusions and supporting data. Further, the record is silent for any medical opinion in support of the Veteran’s contention and in opposition to the opinions provided by the VA examiners. The Board considered the Veteran’s lay assertions as to the etiology of his disability. Although the Veteran is competent to attest to his experiences, he is not competent in these circumstances to opine as to the etiology of his cervical spine condition. The Veteran has not been shown to have specialized medical knowledge that would be necessary to provide a competent opinion regarding service connection. The Board finds the opinions of record to be more probative in this regard. The examiners considered the Veteran’s history, and ultimately concluded that from a medical perspective, it is less likely that his current disability was due to his active service or caused or aggravated by his service-connected conditions. In conclusion, the weight of the evidence is against the claim for service connection for a cervical spine condition, to include as due to service-connected disabilities. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Board of Veterans’ Appeals (Board) remanded this matter in July 2020 to, in pertinent part, request a completed VA Form 21-8940 from the Veteran regarding his past employment history, education, and training. Although one letter was sent to the Veteran to obtain this form in September 2020, it does not appear that the regional office (RO) made more than one attempt to locate the Veteran’s records. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, another attempt should be made to request a completed VA Form 21-8940 from the Veteran regarding his past employment history, education, and training. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-8940 regarding his past employment history, education, and training. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile 2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. A. Elliott II, 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.