Citation Nr: 21010616 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 12-30 803A DATE: February 25, 2021 REMANDED Entitlement to service connection for degenerative disc disease of the cervical spine is remanded. Entitlement to service connection for degenerative disc disease of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1971 to May 1974. In September 2020, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for degenerative disc disease of the cervical spine and lumbar spine 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 November 2019 VA examiner opined that it is less likely than not that degenerative disc disease of the cervical or lumbar spine incurred or is caused by the in-service motor vehicle accidents. The examiner noted that following the two accidents in 1973 the cervical and lumbar spine x-rays were normal and there was no mention of a cervical spine condition on the April 1974 separation examination. The examiner reported that the first documentation of treatment for the cervical spine was surgery in 1995, which is 21 years after release from service and the first documentation of treatment for the low back was in 2002, with the earliest complaint in 2000, which is 26 years after service. In September 2020 the Board found the November 2019 opinion inadequate as it did not address and appeared to dismiss the Veteran’s contentions of ongoing neck and back pain and instead relied on the absence of documented treatment during and after service. The Board issued a remand for an opinion that addressed the Veteran’s symptoms, the medical treatises and explained the significance of any absence of medical records. An addendum opinion was obtained in November 2020. The VA examiner opined that degenerative disc disease of the cervical and lumbar spine are less likely than not incurred in or caused by the in-service motor vehicle accidents. The examiner stated that all evidence was reviewed to include the written brief, articles and the Veteran’s statements. The rationale listed the complaints of back pain in-service and specifically noted that the separation examination did not contain any complaints of back or neck pain. The examiner reported that the Veteran was first seen for back complaints in 2002, which is 26 years after separation, at which time he complained of pain for the last three years; thus, the earliest complaint was 23 years after separation. Therefore, the examiner concluded that intercurrent injuries or diseases could not be ruled out and while the Veteran can state his symptoms, the medical evidence must also be utilized. Finally, the examiner stated that a condition of the suggested severity would have certainty required medical attention over the past 23 years, a nexus is not established. Regrettably, the Board finds the November 2020 opinion is inadequate. The examiner again dismissed the Veteran’s statements and relied on the absence of documented treatment post service. 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). While evidence of a prolonged period without medical complaint and the amount of time that elapsed since service can be considered, the examiner failed to provide a reasoned medical explanation as to the significance of the length of time between separation and the complaints documented in the post-service medical records. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, while the examiner alleged that the brief, articles and statements were reviewed they were not addressed in the rationale. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The matters are REMANDED for the following action: 1. Acquire updated VA and/or 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). 2. 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 of the cervical and/or lumbar spine is related to his active service, or is caused by or aggravated by military service, to include due to the in-service motor vehicle accidents. The examiner must consider and address the following: 1) the medical treatises included within the October 2018 brief See BVA-General October 2018; 2) the February 2018 brief containing the article suggesting a link between trauma and osteoarthritis See Appellate Brief February 2018; 3) the documented in-service complaints of neck and back pain; and 4) the Veteran’s statements that his pain has continued ever since his in-service injury. 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 and treatment history. The examiner must specifically consider and discuss the lay statements of record, regarding his continuity of symptomology since service and the opinion and rationale should reflect such consideration. The examiner may not merely dismiss the Veteran’s statements due to lack of contemporaneous medical records. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis the examiner should explain the medical significance of this fact, i.e., why this is indicative that degenerative disc disease of the cervical or lumbar spine is not related to service. The examiner is advised that the opinion and rationale must go beyond a generalized statement that a review of the provided medical literature and/or articles does not support the Veteran’s claim. The rationale should reflect the specific facts and medical principles specific to the Veteran’s claim. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 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). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.