Citation Nr: 21010693 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-35 826 DATE: February 25, 2021 REMANDED Entitlement to service connection for a cervical spine disability, including compacted spine and degenerative disc disease is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1964 to September 1983. This matter came before the Board of Veterans Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). An October 2018 Board decision granted service connection for sleep apnea and remanded the issues of service connection for bilateral Dupuytren’s contracture and a cervical spine disability for further development, and they were remanded again in an August 2020 Board decision. The Veteran’s June 2011 Notice of Disagreement included the issues of an increased rating for a bilateral hearing loss disability and service connection for metatarsalgia. However, those issues were not perfected in the September 2015 Formal Appeal and thus they are not before the Board. A November 2020 rating decision granted service connection for bilateral Dupuytren’s contracture. As this constituted a complete grant of the benefit sought on appeal, it is not before the Board. Entitlement to service connection for a cervical spine disability, including compacted spine and degenerative disc disease is remanded. The August 2020 Board decision found that the March 2019 VA opinion was inadequate and requested a new opinion, specifically asking that the opinion consider and discuss the lay evidence of record. The directives noted that the record contained lay statements from the Veteran and fellow servicemembers regarding his injury in Iceland and subsequent symptoms. A September 2020 VA opinion found that the Veteran’s cervical spine disability was not likely due to service. As a rationale, the provider stated that during service, the condition was acute only and there was no evidence of chronicity of care. The provider then stated that the separation examination was silent for spine complaints, diagnosis of degenerative joint disease (DJD) was made when the Veteran was approximately 59 years old and that DJD was highly associated with age. The provider then provided an October 2020 addendum opinion, which reiterated the September 2020 opinion then noted that the Veteran and fellow servicemember’s lay statements were reviewed and there was “still not evidence until 2002 of the injury.” The Board finds that the September and October 2020 opinions are inadequate for several reasons and remand for a new examination is therefore required. First, the Board finds that the opinions did not adequately discuss the lay evidence of record regarding a neck injury in service. As noted in the remand directives, the Veteran and his fellow servicemembers submitted lay evidence regarding a neck injury he sustained in Iceland. As the examiner did not discuss that evidence in detail but simply that it was “reviewed”, the basis for disregarding that evidence and finding that there was “no evidence” of injury until 2002 is unclear. The Board notes that lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). Remand for a new opinion is therefore required to properly address the lay evidence of record. The Board also finds that the opinion is unclear due to its imprecise language. The provider stated that “the condition” was acute in service and there was no evidence of “the injury” until 2002 but did not specify the condition or injury being discussed. It is therefore unclear to the Board whether the examiner is referencing the claimed injury from fall on ice or a distinct injury in 2002. Given that the Veteran has submitted competent lay evidence of a neck injury after falling on the ice and April 1981 service treatment records show scapular pain to the left of the spine and a diagnosis of muscle strain, a clear explanation for the finding that there was no evidence of injury until 2002 is required. Finally, the examiner relied heavily on the absence of spine complaints at separation, however in the July 1983 separation medical history the Veteran noted a history of recurrent back pain. The Board notes that there was no separate place on the form to identify neck pain. A medical examination, as this one, that is based on an inaccurate factual premise is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A new examination and opinion—based on full review of the record and supported by stated rationale—is needed to fairly resolve the issue on appeal. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). The matters are REMANDED for the following action: 1. Obtain a new VA opinion from an appropriate provider who has not previously examined the Veteran regarding the etiology of the Veteran’s current cervical spine disability. An in-person examination is not required unless the examiner deems it to be necessary. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s disability is related to the Veteran’s active service, to include his reported injury falling on ice as well as his documented back pain in service. The opinion should specifically address and discuss April 1981 service treatment records finding pain to the left of the spine at the scapular level and the July 1983 separation medical history noting recurrent back pain. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. The examiner is advised that the Veteran is competent to report events such as a fall and lay-observable symptoms such as neck pain and that competent lay evidence should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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.