Citation Nr: 21009248 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-15 403 DATE: February 22, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1977 to August 1984. In October 2020, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. 1. Service Connection The Board of Veterans’ Appeals (Board) finds that a remand is necessary for an addendum medical opinion as discussed below. The February 2018 VA examiner provided a negative nexus opinion for the Veteran’s cervical spine disability. See February 2018 VA Medical Opinion Disability Benefits Questionnaire (DBQ). She reasoned that the Veteran’s service treatment records (STRs) were silent for diagnosis of or treatment of a cervical spine disability. The Board finds that the February 2018 VA medical opinion is inadequate for adjudication as it improperly relies on the absence of evidence, specifically a lack of treatment records. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). Although the Veteran STRs do not document a cervical spine diagnosis, the Veteran endorsed recurrent back pain, and low back pain in August 1983 and June 1984. See STR-Medical. However, the VA examiner did not address whether the Veteran’s current cervical spine disability was related to or caused by the Veteran’s documented back pain complaints. Additionally, the Board finds that the February 2018 VA medical opinion is inadequate because the examiner failed to address the Veteran’s competent and credible lay statements regarding his in-service injury and his complaints of continuing pain since the injury. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (stating that a VA medical opinion lacks probative value when the examiner fails to address a veteran’s lay reports of his medical history and symptoms).  The Veteran testified at the October 2020 Board hearing that he injured his cervical spine when he jumped out of a Bell UH-1 Iroquois, which is a utility military helicopter, while the helicopter was hovering at 15 feet. See Hearing Transcript. The Veteran stated that when he jumped and rolled out of the helicopter, he heard his neck crack, and had difficulty moving afterwards. He further stated that his symptoms of neck pain have continued since his in-service injury. However, the February 2018 VA examiner did not address the Veteran’s lay statements. Finally, the Board notes that the February 2018 VA examiner indicated that there were no imaging studies of the Veteran’s cervical spine, and thus did not indicate whether the Veteran had arthritis of the cervical spine. See February 2018 VA Neck Conditions DBQ. However, the Veteran’s VA treatment records confirm that the Veteran was diagnosed with cervical spine arthritis based on a March 2016 X-Ray Report. See March 2016 VA Addendum Note, in CAPRI received January 2018. As such, it appears that the February 2018 VA examiner relied on an inaccurate or incomplete fact. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.) Thus, based on the foregoing, the Board finds a remand is necessary for an addendum medical opinion to address the nature and etiology of the Veteran’s cervical spine disability. The Board notes the claims file reflects that the Veteran has been receiving treatment from Salem VA Medical Center (VAMC), and Salisbury VAMC, and that records dated through May 2016 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016).    Thus, on remand the RO should obtain any outstanding VA treatment records to include records from the Salem VAMC, and Salisbury VAMC.   The matters are REMANDED for the following action: 1. Obtain the Veteran’s comprehensive VA treatment records for the period from May 2016 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers.  See 38 C.F.R. § 3.159(c)(3) (2020).   The Board observes that the Veteran has been treated at various VA facilities, to include Salem VAMC and Salisbury VAMC.   2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. Obtain an addendum opinion from the VA examiner(s) who conducted the February 2018 VA examination if available. If the prior VA examiner is unavailable, obtain an addendum opinion from a medical professional with appropriate experience to render an etiology opinion for the Veteran’s cervical spine disability. • If the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination(s). • Any clinically indicated testing and/or consultations should be performed.  4. The examiner must review the claims folder including this remand and acknowledge such review in the report.   Based on review of the February 2018 VA examination report and medical opinion, the examiner is requested to address the following:  (a.) Identify the Veteran’s current cervical spine disability(ies). If arthritis is found, the examiner should opine whether it at least as likely as not any arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.  (b.) Assuming that the standard is at least as likely as not, is it possible that the Veteran’s current cervical spine disability could be related to or caused by the in-service injury from jumping out of the Bell UH-1 Iroquois, utility military helicopter, while the helicopter was hovering at 15 feet? See Hearing Transcript. • THE EXAMINER MUST DISCUSS THE VETERAN’S LAY STATEMENTS REGARDING THE HISTORY, CHRONICITY, AND CONTINUITY OF SYMPTOMATOLOGY, TO INCLUDE THE VETERAN’S REPORT OF HIS IN-SERVICE INJURY. S/HE SHOULD OUTLINE THAT HISTORY IN THE REPORT.  (c.) Assuming that the standard is at least as likely as not, is it possible that the Veteran’s current cervical spine disability could be related to or caused by the in-service complaints of recurrent back pain and low back pain noted in August 1983 and June 1984? See STR-Medical. (d.) Are the Veteran’s assertions that his current cervical spine disability was caused by his in-service injury from jumping out of the Bell UH-1 Iroquois, utility military helicopter, while the helicopter was hovering at 15 feet consistent with medical knowledge or implausible?  (e.) Do the Veteran’s reports about his symptoms or his in-service injury from jumping out of the Bell UH-1 Iroquois, utility military helicopter, while the helicopter was hovering at 15 feet with how the Veteran’s cervical spine disability is known to develop?  (f.) Whether it is medically feasible that his current cervical spine disability was caused by his in-service injury from jumping out of the Bell UH-1 Iroquois, utility military helicopter, while the helicopter was hovering at 15 feet? i. If not, state why not and on what basis this conclusion was made.  ii. If so, state why and on what basis this conclusion was made.  • Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized.  • If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.  5. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL.  (Continued on the next page)   IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED.  IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, Associate Attorney 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.