Citation Nr: 21012630 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-40 008 DATE: March 4, 2021 REMANDED Entitlement to service connection for neck disability is remanded. Entitlement to an evaluation in excess of 10 percent prior to September 8, 2017 and from January 1, 2018, for disc bulge of the thoracolumbar spine, thoracic back pain syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1991 to September 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal from February 2012 and July 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, a hearing was held before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in July 2018 and July 2020 when it was remanded for further development.   NECK DISABILITY The Board’s remand directed that a new medical opinion be obtained as the previous March 2019 VA examiner did not discuss all relevant evidence in the opinion provided. A new VA medical opinion was provided in October 2020. The examiner found that the Veteran’s neck disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression in service. The rationale provided was that there was evidence to indicate that the Veteran continued to suffer from the disorder during service, which was typical of the condition. However, the progression was not beyond normal progression for this disorder. There was no evidence of permanent aggravation beyond normal progression identified. The examiner, however, did not provide reasons for this opinion, or provide any explanation as to why the progression was not beyond normal progression for this disorder. Additionally, the examiner did not address the 1992 assessments of cervical spine arthritis and cervical radiculopathy in the service treatment records and the Veteran’s statements regarding the circumstances of his duties as a field radio operator. In Horn v. Shinseki, 25 Vet. App. 231 (2012), the Court held that “it is on VA to establish by clear and unmistakable evidence that... any increase [in disability] was due to the natural progress of the disease” and “VA may not rest on the notion that the record contains insufficient evidence of aggravation. Thus, given the inadequacies in the October 2020 opinion, remand for a supplemental opinion is needed in this case. DISC BULGE OF THE THORACOLUMBAR SPINE While this matter was on remand, additional private and VA treatment records were obtained, including VA treatment records from February 2021. These records indicate that the Veteran suffered from chronic low back pain and wore a back brace, which was helped with massage and chiropractic care. It was also indicated that the Veteran was to follow up with non-VA pain clinic/neurosurgery. The Veteran last received a VA examination in March 2019. At that time, the examiner indicated that he did not use any assistive devices and did not indicate use of a back brace. Therefore, the recent VA treatment records indicate a potential worsening of his back disability and an examination should be obtained to evaluate the current severity of the condition. Additionally, the Veteran indicated in VA treatment records that he goes to Emerge Ortho for community care and pain management. The records from Emerge Ortho are only up to April 2020. Since the Veteran appears to be receiving continuing care for his back disability, updated treatment records should be obtained. Also, the private treatment records obtained in August 2020 indicate that the Veteran is seeing Dr. W.N., a private primary care provider (PCP). Treatment records from the Veteran’s PCP should also be obtained. In addition, updated VA treatment records should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for the complete treatment records from Emerge Ortho and Dr. W.N., the Veteran’s PCP. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from February 2021 to the present. 3. After obtaining all outstanding records, obtain a supplemental medical opinion from a medical professional with the appropriate expertise with regard to the Veteran’s claim of entitlement to service connection for a neck disability. The electronic claims file, including a copy of this Remand, must be made available to and reviewed by the clinician. After reviewing the claims file, the clinician is asked to answer the following questions: a) The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s preexisting neck condition underwent a permanent increase in severity during active duty service. b) If the answer to a) is that it is at least as likely as not, then an opinion should be provided as to whether the increase in severity during service was clearly and unmistakably due to the normal progression of the disability. The medical professional is informed that “clearly and unmistakably” is an onerous burden which requires that the evidence be obvious, manifest, and undebatable. In providing an opinion, the examiner must consider and discuss the Veteran’s statements regarding the circumstances of his duties as a field radio operator, including carrying a lot of weight on his back and carrying a pack with radio equipment which stretched from his head to his buttocks. The Veteran also stated that his sleeping bag would be on top and would jostle and hit his helmet while walking and hiking. The clinician must also consider and discuss the service treatment records, which include complaints of neck pain and assessments of cervical spine arthritis and cervical radiculopathy. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected disc bulge of the thoracolumbar spine, thoracic back pain syndrome. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of   general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.