Citation Nr: 21008296 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 17-36 077 DATE: February 16, 2021 REMANDED Entitlement to service connection for a cervical spine condition, to include as secondary to service-connected lumbosacral strain with degenerative joint disease (DJD) and compression fractures T12, L1, is remanded. REASONS FOR REMAND The Veteran had qualifying service from September 1959 to September 1979. In May 2019, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In May 2020 and November 2020 Decisions, the Board remanded for further development. Based on the reasons discussed below, the Board finds that the agency of original jurisdiction (AOJ) did not substantially comply with the Board’s November 2020 directives, such that further medical development is still required. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). 1. Entitlement to service connection for a cervical spine condition The November 2020 Board Decision found, in pertinent part, that the July 2016 VA etiological opinion regarding the neck was inadequate because the examiner failed to address: (a) potentially favorable evidence regarding the impact of the in-service helicopter crash on the Veteran’s cervical spine disability; and (b) whether the Veteran’s cervical spine disability is secondary to his service-connected thoracolumbar spine disability. Accordingly, the Board directed the AOJ to obtain an addendum etiological opinion. The Board also advised the examiner that: (a) the Veteran’s lay statements regarding suffering an in-service cervical spine injury during the crash were credible; and (b) the lack of contemporaneous records showing complaints of or treatment for a cervical spine disability, alone, is insufficient rationale for a medical nexus opinion. Upon remand, the AOJ obtained a November 2020 VA addendum opinion, in which the examiner opined that: (a) the cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury; and (b) the cervical spine disability was less likely than not secondary to the service-connected thoracolumbar spine disability. The examiner explained that: (a) service treatment records (STR’s) are silent for any neck injuries or neck complaints/problems (noting only a thoracolumbar compression fracture associated with reported accident); and (b) subsequent medical records (VA and private) are also silent for any neck complaints or problems until 2015 (over 35 years after service) at which time degenerative disc disease (degenerative arthritis) is noted on x-ray. The examiner also generally discussed and cited to a university webpage about degenerative disc disease, although she did not specifically tie the information into the Veteran’s circumstances. Crucially, the Board finds that the November 2020 VA addendum opinion is also inadequate because the examiner based her opinion on an inaccurate factual premise, did not consider all potentially favorable evidence, and relied on the absence of records to support the unfavorable opinion. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). Specifically, the November 2020 VA examiner failed to address: (a) STRs showing chronic cervical pain with functional loss and treatment (see March 1972 STRs [the Veteran complained of low back and cervical pain; full range of motion of cervical spine with pain, especially with extension or rotation; treats neck with cervical traction; continue treatment for cervical spine and obtain new cervical spine films]; see also April 1972 STR [back and neck are better; cervical spine films normal]; see also April 1975 STR [the Veteran still complains of chronic neck pain]); (b) a December 23, 2015, record by private provider JSH (documenting increasing extremity weakness and numbness post-cervical spine surgery, but a longstanding history of myelopathic symptoms dating back to the 1970s after a helicopter crash); (c) the Veteran’s competent description of continued neck pain, progressively worsening, since the in-service crash that injured his back and neck (see July 2016 VA neck conditions examination); (d) the Veteran’s competent description of range of motion issues with his neck for several years prior to surgery (see July 2017 VA Form 9); and (e) the Veteran’s competent description that he injured his neck during the crash, he had problems feeling his upper and lower extremities in the hospital after the crash, his back and neck were still bothering him for the remainder of his service but he did not want to complain because he thought he would be medically discharged, he told providers about his neck post-service when asked to look right and left but providers either never took a look at it or told him that he just had to live with it, and he had continued neck pain since service but it became more acute three years prior (see May 2019 Board hearing transcript). The Board has carefully considered whether further remand could be avoided; however, the Veteran has not submitted any private etiological opinions on this matter, both the July 2016 and November 2020 VA etiological opinions are inadequate for the reasons discussed above, and the evidence does not indicate that the Veteran has the medical background necessary to competently opine that his lay-observable symptoms (which he is competent to report) are etiologically related to his current disability of the cervical spine (degenerative arthritis, which is not lay observable because it requires diagnostic testing). Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When the medical evidence is inadequate, the Board must supplement the record by seeking an advisory opinion or ordering another medical examination because it is prohibited from reaching its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Halstead v. Derwinski, 3 Vet. App. 213 (1992). Thus, the Board must remand for the AOJ to obtain an adequate etiological opinion. The matters are REMANDED for the following action: 1. Obtain an addendum etiological opinion regarding whether the Veteran’s cervical spine disability: (a) was at least as likely as not caused or aggravated by his service, including his in-service neck injury during a helicopter crash; and (b) at least as likely as not secondary to his service-connected thoracolumbar spine disability. The examiner is advised that the November 2020 VA addendum opinion is inadequate because the examiner based her opinion on an inaccurate factual premise, did not consider all potentially favorable evidence, and relied on the absence of records to support the unfavorable opinion. Specifically, the November 2020 VA examiner failed to address the following evidence, which must be addressed upon remand in the newly-obtained opinion: (a) STRs showing chronic cervical pain with functional loss and treatment (see March 1972 STRs [the Veteran complained of low back and cervical pain; full range of motion of cervical spine with pain, especially with extension or rotation; treats neck with cervical traction; continue treatment for cervical spine and obtain new cervical spine films]; see also April 1972 STR [back and neck are better; cervical spine films normal]; see also April 1975 STR [the Veteran still complains of chronic neck pain]); (b) a December 23, 2015, record by private provider JSH (documenting increasing extremity weakness and numbness post-cervical spine surgery, but a longstanding history of myelopathic symptoms dating back to the 1970s after a helicopter crash); (c) the Veteran’s competent description of continued neck pain, progressively worsening, since the in-service crash that injured his back and neck (see July 2016 VA neck conditions examination); (d) the Veteran’s competent description of range of motion issues with his neck for several years prior to surgery (see July 2017 VA Form 9); and (e) the Veteran’s competent description that he injured his neck during the crash, he had problems feeling his upper and lower extremities in the hospital after the crash, his back and neck were still bothering him for the remainder of his service but he did not want to complain because he thought he would be medically discharged, he told providers about his neck post-service when asked to look right and left but providers either never took a look at it or told him that he just had to live with it, and he had continued neck pain since service but it became more acute three years prior (see May 2019 Board hearing transcript). The examiner is reminded that the lack of contemporaneous records showing complaints of or treatment for a cervical spine disability, alone, is insufficient rationale for a medical nexus opinion. Due to COVID-19, the Board defers to the examiner’s discretion to determine whether in-person examination is required to render the requested opinion. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.