Citation Nr: 21011794 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-15 673 DATE: March 2, 2021 REMANDED 1. Entitlement to service connection for degenerative changes of the cervical spine is remanded. 2. Entitlement to service connection for residuals of an in-service electrical shock injury other than migraine headaches, peripheral neuropathy, and complex regional pain syndrome, to include Gastroesophageal Reflux Disease (GERD) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1983 to July 1987. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran, his spouse, and a coworker provided testimony before the undersigned Veterans Law Judge at a June 2017 videoconference hearing. A complete copy of the hearing transcript has been associated with the claims file. In a January 2018 decision, the Board denied entitlement to service connection for degenerative changes of the cervical and thoracolumbar spine and granted entitlement to service connection for migraine headaches as a result of electrical shock. The Veteran perfected a timely appeal to the United States Court of Appeals for Veteran Claims (Court). In January 2019, pursuant to a December 2018 Joint Motion for Partial Remand (JMPR) by the Veteran and the VA (the parties), the Court vacated the January 2018 Board decision, to the extent that it denied entitlement to service connection for degenerative changes of the cervical and thoracolumbar spine, and failed to consider the issue of entitlement to service connection for residuals of an in-service electrical shock injury, other than migraine headaches, and remanded the matters back to the Board for compliance with the instructions in the JMPR. The claim of entitlement to service connection for migraine headaches as a result of electrical shock was granted in the January 2018 Board decision, implemented in the February 2018 rating decision, and remains final and undisturbed. These matters were last before the Board in July 2019 when the issues were remanded for evidentiary and procedural development. With respect to the degenerative arthritis of the cervical spine claim, the July 2019 remand directives sought to obtain an updated VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current degenerative changes to the cervical spine are etiologically related to his active duty service. With respect to the claim for residuals of electric shock injury in service, the July 2019 remand directives requested acquiring clarification from the Veteran concerning exactly what residuals he experiences as a result of his in-service electric shock injury, and then obtaining a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any of the identified residuals are etiologically related to the Veteran’s active duty service, to include his conceded electrical shock injury. The Board finds there has not been substantial compliance with the Board’s July 2019 remand directives; as such, an additional remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers the right to compliance with remand orders); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall where there was substantial compliance with remand directives). The Board notes that the Veteran initiated an appeal of service connection for degenerative arthritis of the thoracolumbar spine in addition to the claims outlined above. However, in December 2020, during the pendency of the appeal, service connection was granted for degenerative changes of the thoracolumbar spine. Because the Veteran was awarded service connection, the thoracolumbar spine issue is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for degenerative changes of the cervical spine is remanded. As previously mentioned, the July 2019 Board remand found that an updated VA examination was warranted to assess the nature and severity of the Veteran’s cervical spine disability. Accordingly, the Veteran was afforded a VA examination for his cervical spine disability in February 2020. The examiner confirmed a cervical spine diagnosis of degenerative arthritis of the cervical spine. The examiner then concluded that the Veteran’s cervical spine disability is less likely as not incurred in or caused by service. The rationale noted that there is no medical nexus establishing causality between current complaint and military service; no residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service; veteran was not medically discharged from the military; and, service medical records evidence that veteran was medically qualified to complete his active duty tour. The Board finds the February 2020 VA examination inadequate as it does not consider the Veteran’s lay statements concerning the onset of his cervical spine pain, and the fact that he has had continuing neck pain since his in-service injury where a heavy platform fell on. As such, an addendum opinion is necessary. 2. Entitlement to service connection for residuals of an in-service electrical shock injury other than migraine headaches, peripheral neuropathy, and complex regional pain syndrome, to include GERD is remanded. The parties to the December 2018 JMPR agreed that the Board failed to discuss the scope of the Veteran’s claim seeking entitlement to service connection for residuals from an in-service electrical shock injury, beyond his service-connected migraine headaches, and failed to determine whether further evidentiary development was necessary prior to adjudicating such a claim. The parties noted that the Veteran had reported “significant pain in multiple areas of the body,” which he attributed to his in-service electrical shock injury. The July 2019 remand requested that the RO contact the Veteran and clarify which residuals from his in-service electrical shock injury he is explicitly seeking to have service-connected (aside from migraine headaches, which are already service-connected, and peripheral neuropathy in all four extremities, which were at that time still before the RO). Pursuant to the July 2019 remand, the Veteran clarified that he was seeking service connection for GERD secondary to medication for nerve conditions, lumbar spine, and peripheral nerve conditions of upper and lower extremities. Subsequently, an August 2020 VA examination noted a diagnosis of complex regional pain syndrome, and opined that the Veteran’s complex regional pain syndrome is at least as likely as not the result of an in-service electrocution injury. The Veteran was afforded a VA examination for GERD in October 2020. A diagnosis of GERD was confirmed, and the examiner provided a negative nexus opinion, explaining that there is no diagnosis of peripheral neuropathy based on DBQ examinations of record, instead there is a diagnosis of myositis condition of inflammation of the muscles. Additionally, the examiner stated that the Veteran’s medication list was reviewed, and the medication is less likely than not the cause of the Veteran’s GERD. Finally, the examiner pointed out the fact that the Veteran has a known structural abnormality that is causal to GERD. The Board finds the October 2020 opinion to be inadequate because it failed to address whether the Veteran’s GERD is etiologically related to the Veteran’s in-service electrical shock injury as requested by the July 2019 remand. Further, while the examiner highlighted the fact that the record fails to show a diagnoses of a peripheral nerve condition, and only revealed a diagnosis of myositis, and ultimately opined that the Veteran’s GERD is not etiologically related to his diagnosed myositis, she failed to assess whether the Veteran’s GERD was related to his service-connected complex regional pain syndrome. As such, an addendum opinion is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records relevant to the Veteran’s cervical spine and GERD conditions. 2. Then, request an addendum opinion from the physician examiner who performed the February 2020 cervical spine examination. If that examiner is no longer available, forward the request to a similarly qualified physician. Following complete review of the electronic claims file, the examiner is requested to address the following inquiry: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current degenerative changes to the cervical spine are etiologically related to his active duty service, to include his June 1985 injury where a heavy platform fell on the Veteran? 3. Request an addendum opinion from the physician examiner who performed the October 2020 GERD examination. If that examiner is no longer available, forward the request to a similarly qualified physician. Following complete review of the electronic claims file, the examiner is requested to address the following inquiry: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed GERD is etiologically related to the Veteran’s active duty service, to include his conceded electrical shock injury? (b) Is it at least as likely as not (50 percent or better probability) that the Veteran’s GERD was caused by his service-connected complex regional pain syndrome. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical experience, medical expertise, established medical principles, and references to the evidence of record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.