Citation Nr: 21009663 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-48 423 DATE: February 23, 2021 REMANDED Entitlement to service connection for degenerative arthritis of the cervical spine is remanded. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1971 to May 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO). The Veteran contends that he is entitled to service connection for degenerative arthritis and degenerative disc disease (DDD) of the cervical spine. By way of history, the Veteran filed a claim for his cervical spine condition in May 2014. In a January 2015 rating decision, the RO denied service connection for the Veteran's cervical spine arthritis and DDD. The Veteran timely filed a notice of disagreement with this rating decision, which was confirmed by the RO in an August 2016 Statement of the Case (SOC) and October 2016 Supplemental Statement of the Case (SSOC). Thereafter, the Veteran timely filed an appeal to the Board. Additionally, in an August 2016 Rating Decision the Veteran was granted service connection for cervical strain with an evaluation of 10 percent effective January 30, 2014. In an August 2019 Board decision, the Board denied the Veteran's service connection claims, finding that the Veteran could not be granted service connection for arthritis or DDD of the cervical spine, because the same symptoms had already been assigned service connection under the grant of service connection for a cervical strain, and such a grant would constitute pyramiding. See 38 C.F.R. § 4.14. Thereafter, the Veteran appealed the Board decision to the United States Court of Appeals for Veterans' Claims (CAVC). In August 2020, a Joint Motion for Remand was granted by CAVC, vacating the August 2019 Board decision and remanding these issues back to the Board for additional development. The Board finds that additional development is needed before it can adjudicate these issues. Degenerative Arthritis and Degenerative Disk Disease of the Cervical Spine Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: '(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 disease or injury incurred or aggravated during service' the so-called "nexus" requirement." Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter before the Board, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107(2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran contends he is entitled to service connection for degenerative arthritis and degenerative disk disease (DDD) of the cervical spine. His claim was received in May 2014. The Veteran contends that his cervical spine disorders are the result of him being struck in the head with a shovel while in active service. The Veteran has a current diagnosis of degenerative arthritis and degenerative disk disease (DDD) of the cervical spine. The Veteran underwent a separation examination in April 1973 where clinical evaluation of the Veteran’s spine was determined to be normal. On the associated report of medical history, the Veteran specifically reported that he was in excellent health. The Veteran’s post-service VA treatment records contain an initial complaint of neck pain in March 2014. A late February 2014 magnetic resonance imaging (MRI) revealed multilevel cervical spine degenerative changes, most significantly at C5-6. At a June 2014 VA examination, the Veteran reported pain in his mid-cervical spine and numbness radiating down his arms into his fingers. The Veteran rated the pain 4 out of 10 on an average day and indicated the pain comes and goes. He also stated that he experiences flare-ups and that his pain is further aggravated by sleeping on his stomach and with prolonged reading. He further reported that the pain is improved with chiropractic adjustments and traction. The examiner was not asked to offer an opinion and did not. A July 2014 VA treatment record reveals a provisional diagnosis of neck pain. An assessment revealed degenerative changes most significantly at C5-6. The Veteran stated that he did not believe that his symptoms were bad enough to warrant surgery. In a December 2014 VA medical opinion, the VA examiner opined that it was less likely than not that the Veteran’s cervical spine condition was caused by an in-service injury. The examiner opined that the Veteran’s history, physical examination, x-rays, and MRI are consistent with cervical spine degenerative disc disease and C5-6 disc herniation. However, as there is no evidence of a fracture at the time of the injury that would predispose him to degenerative disc disease, the examiner opined that his spine condition was more likely related to age-related degenerative changes. A June 2015 private treatment note authored by the Veteran’s treating chiropractor Dr. L.S. stated that the Veteran reported a history of chronic neck pain beginning in 1973. The physician opined that it was at least as likely as not that the Veteran’s cervical spine trauma was the main contributor to his chronic neck pain. The physician reasoned that trauma creates hypermobile joints due to the damage of restraining ligaments of the joint which in turn caused stress on the neighboring joints to make up for the movement, resulting in chronic pain and degeneration. The physician further stated that this trauma can lead to hypomobile joints later in the healing stage, which can cause intermittent or chronic pain in the area. The physician also included some articles regarding the link between arthritis and trauma, to include the subsequent prognosis. In a subsequent August 2015 private treatment note by Dr. L.S., the Veteran complained of stiffness and soreness in his neck and back for the past few days. Objectively, the Veteran had fixation and hypomobility noted on palpation of C5, C6, T4, and T6; cervical paraspinal muscle spasm ¾ bilaterally; and tenderness on palpation of the upper trapezoids, bilaterally. An assessment revealed cervical subluxation and cervicobrachial syndrome. In May 2016, the Veteran had another VA examination, at which time the examiner noted diagnoses of degenerative arthritis of the cervical spine without radiculopathy and chronic cervical spine strain. The examiner noted that the Veteran suffered an in-service injury in which a shovel hit him in the head, citing that the Veteran has reported neck pain since the time of the injury. The examiner also stated that the Veteran’s in-service treatment records and discharge examination do not document neck complaints. The examiner stated that it was unlikely that the Veteran sustained a fracture or significant ligamentous injury that would have predisposed him to degenerative cervical spine arthritis. Further, the examiner stated that an untreated fracture or significant ligamentous injury would have likely progressed to much more physical disability than mild chronic neck pain. The examiner further noted that the more likely etiology was that his diffuse cervical spine arthritis was due to age-related changes. The examiner reported that the Veteran’s most pronounced level of degeneration was at C5-6, which is the most common level to be affected by degenerative cervical spine arthritis. The examiner also noted that the Veteran was a former tobacco user, which is also a predisposing factor to degenerative spine arthritis. The May 2016 examiner also stated that he respectfully disagreed with the private opinion of record. The examiner stated that while the private clinician described a whiplash-like injury mechanism, the orthopedic spine literature does not connect whiplash or a cervical strain to the development of degenerative arthritis. The examiner further noted that he could not separate the similar symptoms attributed to the Veteran’s two diagnoses of degenerative disc disease and a neck strain. The Veteran submitted a private Disability Benefits Questionnaire, authored by Dr. J.J., in August 2016. Dr. J.J. stated that she reviewed the Veteran’s medical history, considered his lay statements, and conducted an examination. The physician noted the prior diagnoses of cervical sprain/strain and degenerative disc disease. In the medical history section of the report, she noted that the Veteran was hit in the head with a shovel in February 1973 and that the Veteran’s neck pain started at the time of the injury and has continued to worsen since that time. The Veteran reported constant pain that impacts his quality of life. The physician noted symptoms relating to the diagnoses to include limitation of motion, localized tenderness or pain on palpation, an abnormal gait due to guarding, and an abnormal spinal contour due to guarding and decreased normal cervical lordosis. The private physician opined that the Veteran’s chronic neck pain and degenerative cervical spine sequelae, cervical spine loss of movement, and mobility dysfunction were more likely than not related to his in-service recorded injuries sustained in 1973. The physician opined that the Veteran’s in-service records well documented the extent of the impact of the shovel to his head, which correlated with head trauma whiplash and a cervical-strain type of injury. The physician also noted that the Veteran had no other known risk factors which may have precipitated his current condition. The physician further reported that in her personal experience, review of medical literature, and in her professional opinion, that it was more likely than not that the Veteran’s cervical degenerative disc disease has permanently advanced greater than that of an aged matched normal degenerative progression. In further support of her opinion, she included articles which she stated connected the nexus of events linking trauma to the progression of cervical spine pathology and dysfunction, including degenerative changes. In order to render a decision in this matter, the Board finds that an addendum opinion is necessary. The Veteran’s May 2016 VA examination determined that the Veteran’s DDD and degenerative arthritis were less likely than not incurred in or caused by active service. The examiner opined that the Veteran’s chiropractor describes a whiplash like injury mechanism that the orthopedic spine literature does not support without providing further explanation. The examiner also noted that the Veteran is a former tobacco user which is a predisposing factor to degenerative spine arthritis. However, the Veteran claims that his cervical spine conditions are due to the physical trauma he experienced in service. The Veteran’s chiropractor submitted articles in January 2016 that allege that physical trauma can cause arthritis. However, the VA examiner did not adequately address the articles, only stating “the orthopedic literature does not connect whiplash or a cervical strain to the development of degenerative arthritis.” However, one of the articles submitted by the Veteran’s chiropractor specifically addresses the link between trauma and arthritis. The article states that posttraumatic arthritis (PTA) can develop after an acute joint injury, a meniscal or ligament tear, or an intra-articular fracture, even with optimal treatment. While the study focuses on the knee, it does mention that the same principles could apply to “the facet joints of the spine.” Thus, the Board finds the June 2016 medical opinion inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, in September 2016 the Veteran submitted a private positive opinion from Dr. J. J. along with additional articles pertaining to neck pain. One of the new articles notably includes a study that states that smoking is no longer significantly associated with neck syndrome. Therefore, a remand is necessary for a medical opinion. The matters are REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 2. Obtain updated VA and/or pertinent private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 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. 3. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s degenerative disc disease and/or degenerative arthritis of the cervical spine was incurred in or cause by the claimed in-service injury, event or illness. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms from in-service to the present. The examiner is to specifically address and reconcile, to the extent possible, this examination with the December 2014 VA Examination, May 2016 VA examination and private opinions submitted by Dr. L.S. and Dr. J. J., particularly with regard to functional impact the Veteran may experience as a result of his service connected cervical spine disabilities. The opinion should also address and reconcile with the findings, to the extent possible, the following scientific studies and internet articles submitted by the Veteran: a. Findings and Outcome in Whiplash-Type Neck Distortions, December 15, 1994; b. Prevalence, Determinants, and Consequences of Chronic Neck Pain in Finland, 1991; c. Cleveland Clinic Diseases & Conditions; d. Posttraumatic Arthritis by Robert D. Pickering; and e. Investigations Show New Link Between Trauma and Arthritis by Kathleen Louden. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). (Continued on the next page)   (Continued on the next page) G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.