Citation Nr: 21013143 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-59 379 DATE: March 8, 2021 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of heart surgery is remanded. Entitlement to service connection for a neck disorder, to include as secondary to intervertebral disc syndrome of the lumbar spine (IVDS), is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1977 to February 1980. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision issued in July 2016 by a Department of Veterans Affairs (VA) Regional Office. In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At such time, he waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the October 2016 statement of the case. 38 C.F.R. § 20.1305(c). Also, while the record was held open for 60 days for the submission of additional evidence, none has been received. 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of heart surgery. The Veteran contends that, as a result of heart surgery performed by VA in February 2014, he has residual pain in his left forearm from a harvested artery, a pacemaker wire left in thoracic following surgery, numbness on the left side of his chest, coughing, chest pain, and a neck disorder due to being placed in a brace during the procedure. In particular, the Veteran contends that the coughing and chest pains are a result of his blood being thinned for too long during the procedure. In this regard, he testified that the anesthesiologist called him about a week after the procedure and informed him that the staff overlooked the machine that thinned his blood for 60 seconds longer than they necessary, and the team needed better training on the equipment. In February 2016, a VA examiner reviewed the record and opined that the Veteran did not have residuals of his heart surgery that were caused or aggravated by such VA treatment. Specifically, he found that there was no additional disability as a result from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel and/or as a result of an event not reasonably foreseeable. However, in December 2020, the Veteran, through his representative, reported that a physician addressed his § 1151 claim in a December 15, 2020, treatment record recorded at the VA Medical Center (VAMC) in San Francisco, California. Therefore, the Board finds that a remand is necessary in order to obtain such outstanding VA treatment record and, thereafter, the AOJ should review the record and conduct any additionally indicated development, to include obtaining an addendum opinion, deemed necessary for the adjudication of the instant claim. 2. Entitlement to service connection for a neck disorder, to include as secondary to IVDS. In addition to foregoing claim, the Veteran contends that he has a current neck disorder as a result of in-service injuries that occurred as a result of a fall and when he was involved in a five-ton wrecker roll-over. In the alternative, he claims that such disorder is caused or aggravated by his service-connected IVDS. The Veteran’s service treatment records reflect that, in October 1979, he fell while playing soccer and hit the back of his head. It was noted that he strained his neck in the process, and had pain in the neck for a day. Examination revealed limited range of motion to the left side and bending the neck back. The assessment was neck strain. The remainder of his service treatment records are negative for any complaints, treatment, or diagnosis of a neck disorder or any indication of a motor vehicle accident that resulted in injury to the neck. In February 2016, a VA examiner reviewed the record and opined that the Veteran’s neck disorder, diagnosed as a spur, was less likely caused by his service-connected IVDS. In support of such opinion, he noted that the lumbar spine is an independent structure from a neck spur. Further, a neck spur is a normal physiologic growth with bone physiology, i.e., bone formation and resorption, and there is constant flux between bone formation and resorption since birth to senescence. Thus, the examiner concluded that the development of a neck spur was of no importance in regard to the Veteran’s IVDS. In July 2016, the VA examiner opined that the development of a neck spur was of no consequence of the Veteran’s in-service treatment for neck strain in October 1979 for the same aforementioned reasons and, thus, such is less likely than not related to his military service. However, VA treatment records reflect that, in addition to a neck spur, the Veteran has a diagnosis of degenerative changes and neural foraminal stenosis at C6-7 as noted on an October 2014 CT scan. Additionally, no opinion addressing whether the Veteran’s IVDS aggravated his neck disorder has been obtained. Thus, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing the etiology of all current neck disorders. The matters are REMANDED for the following action: 1. Obtain the December 15, 2020, VA treatment record from the San Francisco VAMC wherein the Veteran’s physician addressed his § 1151 claim. Thereafter, the AOJ should review the record and conduct any additionally indicated development, to include obtaining an addendum opinion, deemed necessary for the adjudication of the Veteran’s § 1151 claim. 2. Forward the record, to include a copy of this Remand to an appropriate clinician to obtain an addendum opinion addressing the etiology of the Veteran’s neck disorder. The need for an examination is left to the discretion of the clinician selected to write the opinion. Following a review of the record, the examiner should address the below inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s neck disorder, diagnosed as a spur and degenerative changes and neural foraminal stenosis at C6-7, had its onset in, or is otherwise related to, his military service, to include his documented treatment for neck strain in October 1979? (B) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s neck disorder, diagnosed as a spur and degenerative changes and neural foraminal stenosis at C6-7, is caused or aggravated by his IVDS? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline of symptomatology. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.