Citation Nr: 21008002 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-40 110 DATE: February 11, 2021 REMANDED Entitlement to service connection for an upper back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1977 to December 1983. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board previously. In May 2018, the Board remanded the issue on appeal for a new examination because it found the prior July 2012 VA examination inadequate. After this remand, VA provided the Veteran with a new cervical spine examination. This matter has now returned to the Board for appellate consideration and the Board finds substantial compliance with the prior remand directives. In April 2019, the Veteran selected the supplemental claim lane under the Rapid Appeals Modernization Program (RAMP). See 4/16/2019 RAMP Opt-in Election. However, the Veteran’s request could not be processed because he did not have a pending appeal that qualified for RAMP. See 1/8/2020 Correspondence. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Entitlement to service connection for an upper back disability. The Veteran contends service connection for an upper back disability. Specifically, the Veteran testified that he had recurrent episodes of upper back pain in-service. See 9/17/2014 STR – Medical-Photocopy, at page 57; see also 1/12/2012 VA Form 21-526; 4/19/2013 NOD. Since the issuance of the July 2019 SSOC, additional VA treatment records have been associated with the claims file. These recent VA treatment records showed complains of neck pain and stiffness, and a diagnosis of neck pain. See 6/22/2020 CAPRI, at pages 105 and 143. As the records were added to the claim file prior to transfer to the Board in October 2020, the Agency of Original Jurisdiction (AOJ) should have issued a supplemental statement of the case. 38 C.F.R. § 19.37(a) (2020). As such, a remand is necessary. Additionally, the Veteran was afforded a VA examination in July 2012. The examiner found that the Veteran did not have a current upper back problem and provided a negative nexus opinion. See 7/19/2012 VA Examination. The May 2018 Board remand found that the July 2012 negative opinion for the upper back was essentially a finding of no current disability. After the May 2018 remand, the Veteran was afforded another VA examination in February 2019. The examiner noted that the Veteran denied having a neck disability and found that the Veteran did not have a diagnosis for an upper back disability. See 2/25/2019 C&P Examination. The Board finds these opinions inadequate. The reviewing clinicians did not base their conclusions on the full claims record, since as mentioned above, more recent VA treatment records show a diagnosis for neck pain. As such, on remand, the AOJ is to provide the Veteran with another VA examination and addendum opinion to determine whether the Veteran’s neck pain is related to the in-service recurrent episodes of upper back pain. This matter is REMANDED for the following actions: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. After completion of step # 1, schedule the Veteran for an appropriate cervical spine examination. The clinician is to review the virtual file, including a copy of this Remand. The examiner is to note that VA treatment records showed a diagnosis of neck pain in January 2020. See 6/22/2020 CAPRI, at page 105. Please complete the “Functional Impact” section of the report. After a review of the claims file and gathering relevant medical history from the Veteran, the reviewing clinician must address: (a.) Whether it is at least as likely as not (probability of 50 percent or more), that the Veteran’s neck pain in whole or part, had its onset in service. **In doing so, the examiner is to address the Veteran’s recurrent episodes of upper back pain in-service. See 9/17/2014 STR – Medical-Photocopy, at page 57.** A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.