Citation Nr: 21011450 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-30 557 DATE: March 1, 2021 REMANDED Service connection for an upper back disability or cervical spine disability, to include as secondary to the service-connected lumbosacral strain with degenerative arthritis, is remanded. A compensable rating prior to September 21, 2011, and in excess of 10 percent thereafter for a lumbosacral strain with degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1992 to February 2000. This matter is before the Board of Veterans Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. These issues were previously before the Board in August 2019 and November 2019 when they were remanded for further development. Outstanding Treatment Records At her January 2020 VA examination, the Veteran reported that she had undergone chiropractic treatment and physical therapy for her back in 2014 and 2015. It is unclear whether this treatment was provided by a VA or a private provider. On remand, the Veteran should be asked to identify the provider(s) who treated her during this time and these records should be obtained and added to the claims file. Service Connection - Upper Back Disability or Cervical Spine Disability The Veteran contends that she has a cervical spine or upper back disability that is related to service. The Board’s November 2019 remand directives included providing the Veteran with a VA examination to obtain an opinion as to whether the Veteran had a current disability of the neck or upper back related to service. The instructions specifically included a notation to the recent Federal Circuit case holding that if pain causes functional impairment it can qualify as a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The required opinion was provided in January 2020; however, for the following reasons, the opinion is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner found that the Veteran did not have a diagnosis of a cervical spine or upper back disability and did not have any functional impairment related to the upper back or cervical spine. However, the examiner included in her report the results of an April 2013 X-ray report, revealing straightening of the cervical lordosis, which was possibly related to muscle spasm and slight disc height loss at the C5-C6 level. At that time, the Veteran reported chronic intermittent upper back pain at the C7-T1 level. In addition, at her most recent examination, the Veteran reported that she experienced pain in the mid-thoracic area every few months, and it could last about a week. She described sharp pain at a severity 7 or 8 out of 10. The Veteran reported that the pain caused impairment and interfered with her job if she was doing something strenuous, such as destruction, that involved moving boxes around or when she was scanning. The examiner did not address this evidence, including the Veteran’s contentions. As such, the January 2020 opinion is inadequate. On remand, a new opinion should be obtained that addresses the Veteran’s contentions. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the provider who provided chiropractic treatment and physical therapy for her back in 2014 and 2015 and, if private, to complete a VA Form 21-4142 for each facility. If VA treatment, add these records to the claims file. If private treatment, make two requests for the authorized records from each facility, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination for her cervical spine or upper back disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider the impairment a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Has the Veteran had a cervical spine or upper back disability (including functional impairment without a diagnosis) at any time over the appeals period, that is, since December 2011? In so opining, the examiner must address the evidence of record showing a disability in the Veteran’s upper back or neck, including an April 2013 X-ray report, revealing straightening of the cervical lordosis, which was possibly related to muscle spasm and slight disc height loss at the C5-C6 level, the Veteran’s reports of chronic intermittent upper back pain at the C7-T1 level, and her reports that she experienced pain (at a level of 7 to 8 out of 10) in the mid-thoracic area every few months, lasting about a week, and that the pain caused impairment and interfered with her job if she was doing something strenuous. If the Veteran has a current cervical spine or upper back disability, then the examiner must opine whether it is at least as likely as not (1) related to service, (2) proximately due to her service-connected lumbar spine disability or (3) aggravated, i.e., worsened beyond its natural progression, by her lumbar spine disability. If the Veteran’s current cervical spine or upper back disability has been aggravated by his service-connected lumbar spine disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the (Continued on the next page)   Veteran’s reports generally inconsistent with medical knowledge or implausible? J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith 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.