Citation Nr: 21006967 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-15 739 DATE: February 8, 2021 REMANDED Entitlement to service connection for a neck disability, to include as secondary to the Veteran’s service-connected back disability, is remanded. REASONS FOR REMAND The Veteran had active service from October 1978 to October 1984, and from January 1987 to September 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in February 2018 and October 2019 for additional development. The case is now again before the Board for further appellate action. Entitlement to service connection for a neck disorder, to include as secondary to the Veteran’s service-connected back disability, is remanded. In October 2019, the Board remanded the Veteran’s service connection claim for a neck disorder to obtain an addendum medical opinion addressing the etiology of the Veteran’s neck disorder and whether any current neck disorder was caused or aggravated by the Veteran’s service-connected back disability, to include any altered body mechanics resulting from such. The Veteran was provided a VA addendum opinion in June 2020. The examiner opined that the Veteran’s neck disorder was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected back disability. The examiner’s rationale included the following: Cervical spine [degenerative disc disease (DDD)] is a degenerative process that happens with age as the discs in between the vertebrae dry out and succumb to wear and tear. Injuries and smoking can accelerate the degeneration of the disc. The fact that DDD exists in the lumbar spine does not proximately cause it in the cervical spine. Veteran separation exam is silent to complaints of chronic neck pain or condition. Veteran diagnosed with Cervical spine DDD 15 years after separation from service when he was 54 years. Population based MRI studies show nearly 100% of adults aged >40 years have degeneration of at least 1 cervical level. https://bestpractice.bmj.com/topics/en-us/577/epidemiology. As there was no objective evidence of muscle spasm or abnormal spinal contour and no mention of a pathophysiological nexus for chronic disruption of body mechanics having a significant impact or causal effect to the veteran’s cervical spine DDD, it would be purely speculative to attempt to provide a rationale on body mechanics solely attributed to SC lumbar spine condition causing or significantly aggravating veteran’s claimed cervical spine condition. The Board finds that the June 2020 examination to be inadequate as the examiner did not provide an opinion on whether it was at least as likely as not that the Veteran’s neck disorder was aggravated by his service-connected back disability. Moreover, the examiner did not appear to properly consider lay evidence in her opinion. Her opinion was based, at least in part, on her conclusion that there was no objective evidence of muscle spasms of the back, yet she did not address lay evidence of the Veteran’s muscle spasms. A November 2016 service treatment record reported the Veteran had been experiencing muscle tightness and spasms of the back for three weeks. A medical opinion is inadequate when the examiner fails to consider all relevant evidence of record, including lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The October 2019 Board remand directives directed the examiner to determine whether the Veteran’s neck disorder was caused or “chronically worsened” by the service-connected back disability, and the June 2020 VA examiner used the phrase “significantly aggravating” in her medical opinion. However, a few months before the Board issued the remand, the United States Court of Appeals for Veterans Claims (Court) held in the case of Ward v. Wilkie, 31 Vet. App. 233 (2019), that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, the Court explained that “aggravation” is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. Id. As such, on remand, the examiner should consider this clarified standard in formulating an addendum opinion. Due to the deficiencies of the June 2020 medical opinion described above, remand is warranted to obtain an addendum opinion to address whether the Veteran’s service-connected back disability either caused or aggravated the Veteran’s neck disorder. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268 (1998). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Obtain an addendum medical opinion from the examiner who provided the June 2020 VA opinion, if available, or another qualified medical professional. The examiner must review the entire claims file, to include this remand. 4. After reviewing the relevant evidence, the examiner should provide opinions for the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s neck disorder was incurred or caused by the Veteran’s active service? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s neck disorder was caused by the Veteran’s service-connected back disability? (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s neck disorder was aggravated (any increase in disability beyond the natural progression) by his service-connected back disability? (d.) If aggravation is found, the examiner is asked to state the baseline level of severity of his neck disorder before the onset of aggravation, to discuss the earliest medical evidence establishing the current level of severity, and to discuss what level of increase in severity from the baseline was due to the natural progression of the neck disorder and what level of increase was due to aggravation from his service-connected back disability. 5. The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 6. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the issue sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. § §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.