Citation Nr: 21011972 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-33 084 DATE: March 3, 2021 REMAND Entitlement to service connection for degenerative joint disease (DJD) of the cervical spine, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1995 to April 1998. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, found that new and material evidence had been received to reopen a previously denied claim of entitlement to service connection for DJD of the cervical spine; the RO, however, denied that claim on the merits. The Veteran filed a timely notice of disagreement, which was received by VA in June 2017. In April 2018, the RO issued a statement of the case. The Veteran’s substantive appeal was received by VA in June 2018. In a September 2019 decision, the Board, in pertinent part, “reopened” the previously denied claim of entitlement to service connection for DJD of the cervical spine, to include as secondary to service-connected disability, but denied that claim on the merits. The Veteran appealed the Board’s denial of service connection for DJD of the cervical spine to the United States Court of Appeals for Veterans Claims (Court). Thereafter, in August 2020, the Veteran’s then-attorney and VA’s General Counsel filed a Joint Motion for Remand (Joint Motion) with the Court to vacate the Board’s September 2019 decision insofar as it had denied service connection for DJD of the cervical spine, to include as secondary to service-connected disability; subsequently, the Court granted the motion that same month and the matter was remanded to the Board for further proceedings consistent with the Joint Motion. Entitlement to service connection for degenerative joint disease of the cervical spine. In light of points raised in the Joint Motion, the Board finds that further agency of original jurisdiction (AOJ) action in this appeal is warranted. Specifically, in the Joint Motion, the parties agreed that the Board “did not adequately address [the Veteran’s] contention that his cervical spine condition is related to ‘falls due to laxity of the left knee.’” The parties stated that although the Board briefly mentioned this theory, the Board’s analysis was lacking because the Board did not adequately address “whether the evidence shows that the cervical spine condition is related to falls caused by the service connected left knee condition.” In this regard, the Board notes that in April 2018, the AOJ obtained an addendum medical opinion from a VA clinician who had examined the Veteran in February 2018 examiner. A review of the opinion report shows that the VA clinician opined that the Veteran’s degenerative arthritis of the cervical spine was less likely than not proximately due to or the result of falls due to his service-connected knee disability, the use of a forearm crutch or cane for service-connected disabilities, or loss of curvature of the cervical spine due to falls or the use of a forearm crutch or cane. The clinician explained that the Veteran’s neck disability was not due to falls caused by his service-connected left knee disability because there was “no record of a specific cervical vertebral injury or cervical disc herniation or injury attributable to a fall.” The clinician noted that “[w]ithout a specific bone/joint or disc injury[,] falls because of a knee condition, or any other reason, would not result in degenerative changes of the bone or the discs.” The clinician also pointed out that although the “[u]se of gait assistive devices, including cane and crutches, could place increased pressure on the upper body including the cervical region . . . effects of cane or forearm crutches only indirectly increase pressure on the neck (with pressure being distributed over the torso and bilateral shoulders before affecting the neck). The clinician explained, therefore, that “the result would be limited to the soft tissue and musculature of the neck, not exerting enough force to affect the bony structures or discs.” The clinician also found “no evidence for loss of natural curvature of the neck as recent as 2017, prior to [the] Veteran’s Anterior Cervical Discectomy and Fusion (ACDF) of C3-C6 in January 2018, after which loss of natural curvature of the cervical spine is to be expected.” The clinician reiterated that “the falls and the use of forearm crutches and/or cane did not cause any loss of the cervical spine degeneration or myelopathy that ultimately required the ACDF” and thus opined that “the falls and the use of forearm crutches and/or cane did not cause any loss of natural curvature of the cervical spine that may result from the ACDF.” Although the VA clinician sufficiently addressed the question of causation, secondary service connection is a two-part issue that involves analysis of both causation and aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (providing that “[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected”). Here, the Veteran contends that his current DJD of the cervical spine disability was caused by or aggravated by other service-connected disabilities, to include falls resulting therefrom. With regard to aggravation, the VA clinician found that “the Veteran’s degenerative arthritis of the cervical spine and/or cervical myelopathy developed over time, years after military discharge, and has not been permanently aggravated beyond normal progression by any specific cause per the record.” Unfortunately, in light of recent caselaw, the Board finds that the April 2018 addendum medical opinion is not adequate to rely upon for adjudication purposes. In Ward v. Wilkie, the Court explicitly rejected the “permanent worsening” standard in the context of claims for secondary service connection of a non-service-connected injury or disease, holding that “any additional impairment of earning capacity—in non-service-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence” is compensable. 31 Vet. App. 233, 239 (2019); see 38 U.S.C. §§ 1110, 1131; Allen, supra. Further, it has been held that “disability” under 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability.” Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). Here, the Board cannot conclude that the April 2018 addendum medical opinion provides any insight into the relevant inquiry, which is whether any service-connected disability aggravated any functional impairment associated with the Veteran’s DJD of the cervical spine. See Ward, 31 Vet. App. at 239. Accordingly, the opinion is not adequate to rely upon and the matter must again be remanded. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. The most recent VA treatment records in evidence are dated in August 2020. 2. After obtaining outstanding records as directed above, provide access to the Veteran’s claims folder to a clinician for the purposes of obtaining a medical opinion regarding aggravation of the Veteran’s current DJD of the cervical spine by a service-connected disability. The need for an examination is left to the discretion of the clinician. After reviewing the record and performing an examination should the clinician deem an examination necessary, the clinician should provide an opinion, with supporting rationale, as to whether it is at least as likely as not the Veteran’s DJD of the cervical spine was aggravated by a service-connect disability. The clinician should address all functional impairment associated with the Veteran’s DJD of the cervical spine and consider whether any additional functional impairment results from a service-connected disability. In doing so, the clinician must consider the relationship of any falls due to the Veteran’s service-connected knee disability, the use of a forearm crutch or cane for service-connected disabilities, or loss of curvature of the cervical spine due to falls or the use of a forearm crutch or cane. The clinician is also reminded that permanent aggravation of the Veteran’s current DJD of the cervical spine disability is not necessary to grant service connection, and should not be considered; worsening that is not permanent is sufficient to support service connection. In providing the requested opinions, the clinician should consider and reference relevant evidence of record, to include VA treatment records from: (i) April 2018 showing the Veteran fell onto his shoulder and neck, (ii) July and December 2018 showing the Veteran had persistent neck pain since the fall in April 2018, (iii) March 2019 including x-rays of the Veteran’s cervical spine, (iv) July 2019 showing the Veteran fell and hit his head, and (v) May 2020 showing the Veteran fell and subsequently experienced neck pain. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page)   If the clinician is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hillan Sosa, Associate 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.