Citation Nr: 21008692 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 12-00 888 DATE: February 17, 2021 REMANDED Entitlement to service connection for a cervical spine disability (claimed as a back injury) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1973 to July 1975 and from July 1975 to January 1977. This matter comes to the Board of Veterans’ Appeals (Board) from an October 2008 rating decision which, in pertinent part, denied entitlement to service connection for a back disability. In April 2012, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In April 2014, the Board remanded the case for further development, to include obtaining outstanding records. In a June 2017 decision, the Board denied entitlement to service connection for a back disability. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court), and in an August 2018 order, the Court granted the parties’ Joint Motion for Remand, vacated the Board’s June 2017 decision as it pertained to the Veteran’s back disability, and remanded the matter back to the Board for development consistent with the Joint Motion. In February 2019 and June 2020, the Board remanded the matter for further development, to include obtaining outstanding private treatment records and VA examinations and medical opinions. Entitlement to service connection for a cervical spine disability (claimed as a back injury) is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a cervical spine disability at this time. Upon review of the record and the history of this claim, the Board finds that a remand is warranted for an addendum opinion to clarify the nature and etiology of the Veteran’s claimed disability. The Veteran’s service treatment records reflect that in March 1975, the Veteran sought treatment for acute upper back and paraspinal myalgia on the right side. In May 2007, the Veteran filed a claim of service connection for a back disability and in an August 2007 statement in support of claim, the Veteran reported that his back pain had worsened over the last 30 years. In a July 2008 buddy statement, the Veteran’s spouse reported the Veteran did not sleep well at night due to back pain. A May 2009 VA spine examination report reflects the Veteran reported that he initially hurt his upper back in service pulling a truck tire out of the back of a truck and that currently, his upper back and posterior left shoulder blade area ached. Associated imaging studies of the thoracic spine were normal, and the examiner indicated that while the Veteran sought treatment in service for right-sided upper back muscle strain in service, he currently complained of left-sided upper back muscle aches. As imaging studies of the thoracic spine were normal, the examiner found that the Veteran did not have a current disability. An October 2011 VA thoracolumbar spine examination reflects the Veteran reported intermittent pain in the left superior lateral latissimus dorsi. When asked to opine as to a low back disability, the examiner indicated that the Veteran had not complained of a low back disability during service and that while imaging studies of the lumbosacral spine revealed mild-age acquired degeneration, it was too mild to be symptomatic. Private chiropractic records dated in 2012 reflect complaints of pain in the left shoulder, and mid and low back, especially to the left side. His treating clinician diagnosed him with left shoulder pain/rotator cuff syndrome, thoracic pain due to muscular spasm and lower back pain with limited range of motion and physical activities. During the April 2012 Board hearing, the Veteran testified that he suffered a back strain during service and that after service, he began having pain in his left side and under his shoulder on the left side. He stated that he had been told by his treating clinician that his in-service injury had not healed properly. In a June 2017 decision, the Board denied the Veteran’s claim for a back disability, finding that the Veteran’s currently diagnosed left shoulder pain, rotator cuff syndrome, thoracic pain due to muscular spasm, and lower back pain with limited range of motion and physical activities were not related to in-service complaints of an upper right back injury nor was there continuity of symptomatology. Pursuant to an August 2018 Joint Motion for Remand, the parties agreed that a new VA examination of the cervical spine was necessary in order to address the etiology of the Veteran’s current upper back complaints and any connection to his in-service upper back injury as the October 2011 VA examination was for a low back condition. VA treatment records associated with the record after the August 2018 Joint Motion reflect that in October 2017, the Veteran sought treatment for right neck and shoulder pain most consistent with muscle strain. A January 2019 letter from the Veteran’s private treatment clinician also reflected a diagnosis of chronic upper back/lumbar strain. A December 2019 VA examiner opined that the Veteran’s claimed cervical spine disability was less likely than not incurred in or caused by service. However, in the June 2020 decision, the Board found that this opinion appeared to be based on a finding that the Veteran did not have a current disability and did not consider October 2017 VA treatment records or January 2019 private treatment records. The Board also found that while Veteran’s private treating clinician provided an etiological opinion in January 2019, the opinion was inadequate to establish service connection. Private chiropractic treatment records dated in 2017 and 2019 and received in July 2020 reflect diagnoses of segmental and somatic dysfunction of the cervical and thoracic spine. Finally, while a July 2020 VA examiner opined that the Veteran’s claimed cervical spine disability was less likely than not related to service, the examiner’s opinion appears to be based on a finding that the Veteran did not seek treatment for a cervical spine disability during service or since separation from service. Rather, the examiner explained that the Veteran was seen for an acute upper back disability during service in March 1975. Here, it appears that the July 2020 VA examiner distinguished the cervical spine from the upper back whereas the Court and the Board have not. Thus, the Board finds that there is not yet an opinion that adequately addresses the nature and etiology of the Veteran’s claimed disability and that remand for an addendum opinion is warranted. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records from October 2020 to present. 2. Obtain an addendum opinion from an appropriate clinician as to the nature and etiology of the Veteran’s claimed back disability. The examiner must review the claims file. The examiner should identify each disability of the upper back, to include the cervical and thoracic spine. The record reflects current complaints of left side upper back, mid back, and shoulder pain; left superior lateral latissimus dorsi pain, right side neck and shoulder pain; and diagnoses of left shoulder pain/rotator cuff syndrome, thoracic pain due to muscular spasm, chronic upper back strain, and segmental and somatic dysfunction of the cervical and thoracic spine. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: For each identified disability of the upper back, including of the cervical and thoracic spine, is it at least as likely as not that the disability (1) began during active service, to include related to March 1975 treatment for acute upper back and paraspinal myalgia on the right side, (2) of arthritis manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. After completing the above, and any other development as may be indicated, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.