Citation Nr: 21009923 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 09-37 944 DATE: February 23, 2021 REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected left and right knee disabilities, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty for training from August 21, 1977 to December 1, 1977. This case is before the Board of Veterans’ Appeals (Board) on appeal of a February 2009 Department of Veterans Affairs (VA) rating decision. In May 2015, at a Travel Board hearing was held before the undersigned. A May 2016 Board decision denied service connection for a cervical spine disability including on a secondary basis, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). A September 2017 CAVC Memorandum Decision set aside the Board’s decision and remanded the case to the Board for further consideration consistent with the Memorandum Decision. In June 2018 and October 2019, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected left and right knee disabilities Unfortunately, there has not been substantial compliance with the Board’s previous remand directives, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The orthopedic surgeon, who examined the Veteran in March 2020 and provided an opinion, did not discuss the June 2015 letter from a VA nurse practitioner, as requested. [The CAVC Memorandum Decsion, which is the law of the case, specifically cited such noncompliance as a partial basis for finding a prior examination report inadequate.] Also, the examiner did not clearly articulate the etiology for the Veteran’s cervical spine disability that she found to be more likely, with accompanying rationale. The matter is REMANDED for the following action: 1. Secure for the claims file any updated (since July 2020) records of the Veteran’s VA evaluations and treatment for cervical spine disability. Also, ask him to submit records (any not already on file) of private evaluations and treatment he received for the disability, or submit a medical release for the VA to obtain them on his behalf. 2. Then, return the claims file to the provider of the March 2020 opinion, for an addendum opinion regarding the etiology of the Veteran’s diagnosed cervical spine disability. If she is unavailable, send the claims file to another appropriate clinician in orthopedics, for such opinion (and an examination of the Veteran, if it is deemed necessary). Upon review of the claims file including any added records since the March 2020 examination, the consulting provider is (again) asked to respond to the following: (a). Is it at least as likely as not (a 50 percent or greater probability) that the diagnosed cervical spine disability was caused, or aggravated, by the Veteran’s service-connected left and/or right knee disabilities? (The term “aggravation” means a permanent increase in the underlying disability, i.e., an irreversible worsening of the condition beyond its natural clinical course.) (b). If the examiner finds that the Veteran’s cervical spine disability has been aggravated by a service-connected disability, and if medically ascertainable, the examiner should identify the degree of worsening that resulted from the contribution to aggravation by the service-connected disability (even if the impact was minimal). (c). If the examiner finds that the cervical spine disability was not caused or aggravated by a service-connected disability, the examiner should clearly identify the etiology considered to be more likely and explain fully why that is so. (d). The opinion and rationale must discuss the June 2015 medical opinion by a VA nurse practitioner (which indicates that the Veteran’s neck disability is secondary to his service-connected left knee disability) and express agreement or disagreement with the opinion with full and adequate rationale for the agreement or disagreement. In furnishing the opinion, the examiner should review the Veteran’s lay statements, describing his episodes of falling due to his bilateral knee disability and how such falls have impacted his cervical spine, and consider how such statements comport with generally accepted medical norms. The absence of documentation (e.g., concerning his falls and whether they impacted his cervical spine) cannot be the only basis for rejecting a possible nexus to service-connected disability, but providing an [alternate] likely etiology (beyond any assertion that there was an absence of documentation of the falls and how they impacted his cervical spine) may overcome this. The provider is advised that the lack of contemporaneous medical documentation (of the event, injury, or disease) is not fatal to his claim, and that the lack of such records is one factor among many that must be weighed in determining whether the event, injury, or disease occurred. The examiner must explain the rationale for all opinions, citing to relevant evidence, supporting factual data and medical literature, as appropriate. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.