Citation Nr: 21008590 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-42 731 DATE: February 17, 2021 REMANDED Entitlement to service connection for a cervical spine disability, to include cervical stenosis with radiculopathy and to include as secondary to residuals of a compression fracture of the thoracic spine is remanded. Entitlement to service connection for lumbar radiculopathy, as secondary to the residuals of a compression fracture of the thoracic spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1981 to May 1982. 1. Entitlement to service connection for a cervical spine disability, to include cervical stenosis with radiculopathy and to include as secondary to residuals of a compression fracture of the thoracic spine, is remanded. 2. Entitlement to service connection for lumbar radiculopathy, as secondary to the residuals of a compression fracture of the thoracic spine, is remanded. These matters were previously denied by the Board of Veterans Appeals (Board) in November 2019 and the Veteran timely appealed to the Court of Appeals for Veterans Claims (the Court). In a September 2020 Joint Motion for Partial Remand (JMPR), the Court remanded the matter to the Board for duty to assist errors and inadequate reasons and bases for denying the claim. The matter has returned to the Board for further development. The Board concludes that the Veteran’s claims seeking service connection for cervical spine disability, to include cervical stenosis with radiculopathy and to include as secondary to residuals of a compression fracture of the thoracic spine, and lumbar radiculopathy, as secondary to the residuals of a compression fracture of the thoracic spine, require further development. First, the JMPR indicates that the Veteran reported in May 2001 that he received treatment for his back from the Canandaigua VA Medical Center (VAMC) in 1982 and went again for physical therapy in 1990. However, an undated information request in the record only requested outpatient treatment records from the Canandaigua VAMC from January 1, 1992, to the date of the request. Pursuant to 38 U.S.C. § 5103A, the Secretary is required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary. As such, VA is required to make as many requests as are necessary to obtain VA medical records. 38 C.F.R. §§ 3.159(c)(2), (3). Because the record does not reflect that the treatment records have been obtained, or that VA has attempted to obtain these treatment records, was unable to obtain these treatment records, and notified the Veteran of VA’s inability to obtain the records and the efforts made to obtain the records, a remand is required. Id. Next, in its November 2019 denial of service connection for a cervical spine disorder, the Board relied, in part, on a July 2016 VA neck conditions disability benefits questionnaire that concluded that the Veteran’s current cervical spine disorder was less likely than not caused by or aggravated by the service-connected residuals of a compression fracture of the thoracic spine. The examiner supported their opinion by stating that they were “not aware of any medical literature that confirms that compression fracture [of the] thoracic spine 11-12 alone in the absence of any other factors results in disability to or limitation of joints/articulations superior to the affected joint.” However, this opinion did not address whether the Veteran’s service-connected thoracic spine condition aggravated his current cervical spine disorder. See Atencio v. O’Rourke, 30 Vet. App. 74, 90 (2019). Additionally, the July 2016 examiner also determined that the Veteran’s thoracic spine condition alone could not have caused his cervical spine condition, but they did not opine whether the Veteran’s cervical spine disorder was proximately due to the Veteran’s service-connected thoracic spine disability. As such, an addendum opinion is required to determine whether the Veteran’s service-connected thoracic spine disability proximately caused or aggravated the Veteran’s current cervical spine disorder. Lastly, the Board’s denial of service connection for lumbar radiculopathy was based, in part, on a June 2016 VA back conditions disability benefits questionnaire, which noted that the Veteran had degenerative changes of the lumbar spine and opined that it was “likely that a lot of [the Veteran’s] back disability resulted from his lumbar disease, which [was] not service connected.” The examiner also opined that it “would be speculation to try and determine how much [was] secondary to the minimal T11-T12 disc disease,” and stated that “[d]ecreased sensation of the feet and decreased achilles reflexes [were] secondary to his polyneuropathy of the lower extremities, not his back disability.” By stating that “a lot of” the Veteran’s back disability resulted from non-service-connected lumbar disease, the examiner did not opine as to whether the Veteran’s service-connected thoracic spine disability proximately caused or aggravated the Veteran’s lumbar radiculopathy. Additionally, the examiner did not indicate whether their inability to estimate how much of the Appellant’s degenerative changes of the lumbar spine were secondary to his service-connected T11-T12 disease reflected the limitation of the medical community at large or their own specific limitation. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The examiner also did not provide a supporting rationale when they opined that the Veteran’s decreased sensation of the feet and decreased achilles reflexes were secondary to his polyneuropathy of the lower extremities rather than his service-connected thoracic spine disability. Therefore, a remand is required in order to obtain adequate opinions. The matters are REMANDED for the following action: 1. Obtain any and all treatment records from the Canandaigua VA Medical Center since 1982. If the Veteran’s treatment records from the Canandaigua VAMC cannot be obtained or are found not to exist, the AOJ should notify the Veteran of the inability to obtain the records and the efforts made to obtain them, and provide the Veteran with an opportunity to submit such records. 2. Forward the claims file to the VA examiner who conducted the July 2016 VA examination (or another VA examiner if the original examiner is unavailable) for an addendum opinion as to whether the Veteran’s cervical spine disability, to include cervical stenosis with radiculopathy, is at least as likely as not (i.e. a 50 percent or greater probability) proximately due to or aggravated by the Veteran’s service-connected residuals of a compression fracture of the thoracic spine. The examiner should also review this remand and the evidentiary record and provide a comprehensive report, including complete rationales for all opinions. A new examination is not necessary unless deemed so by the examiner. 3. Forward the claims file to the VA examiner who conducted the June 2016 VA examination (or another VA examiner if the original examiner is unavailable) for an addendum opinion as to whether the Veteran’s lumbar radiculopathy is at least as likely as not (i.e. a 50 percent or greater probability) proximately due to or aggravated by the Veteran’s service-connected residuals of a compression fracture of the thoracic spine. If the examiner cannot opine as to whether the Veteran’s lumbar radiculopathy symptoms may be related at least in part to the Veteran’s service-connected thoracic spine disability, the examiner should indicate whether their inability to estimate how much of the Appellant’s degenerative changes of the lumbar spine are secondary to his service-connected T11-T12 disease reflects the limitation of the medical community at large or their own specific limitation. The examiner should also review this remand and the evidentiary record and provide a comprehensive report, including complete rationales for all opinions. A new examination is not necessary unless deemed so by the examiner. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Veltri, Associate Counsel