Citation Nr: 21013302
Decision Date: 03/09/21	Archive Date: 03/09/21

DOCKET NO. 14-28 196A
DATE: March 9, 2021

REMANDED

1. Entitlement to service connection for a cervical spine disability is remanded.

2. Entitlement to service connection for a right shoulder disability is remanded.

REASONS FOR REMAND

The Veteran serviced on active duty from November 2009 to December 2012. 

In an April 2018 decision, the Board denied the claims for service connection for a neck disorder and a right shoulder disorder. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2020 Memorandum Decision, the Court vacated the Board's decision and remanded the claims for the Board to consider the Saunders decision, which was decided by the U.S. Court of Appeals for the Federal Circuit two weeks after the Board decision and overruled the finding in Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) which formed the basis for the April 2018 denial, that pain alone cannot constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Court also noted the Board erred when it did not consider in-service diagnoses of neck disabilities. The case has returned to the Board for further appellate review.

The Board has recharacterized the claim for service connection for a neck disability as a cervical spine disability, as the neck is the same as the cervical spine.

1. Entitlement to service connection for a cervical spine disability is remanded.

2. Entitlement to service connection for a right shoulder disability is remanded.

In the March 2020 Memorandum Decision, the Court found the Board erred in its decision when it denied service connection for a cervical spine disability by failing to consider a favorable finding of in-service diagnoses of neck disabilities. The Court found the Board also erred when it used outdated law to determine there were no current disabilities because the Veteran lacked current diagnoses of a cervical spine and a right shoulder disability. 

The Board finds the March 2013 VA examination is inadequate because the examiner provided an opinion without reviewing the claims file. Also the Regional Office did not offer a new examination to the Veteran once service treatment records were added to the file. The Board finds that remand for a new VA examination is warranted to fully assist the Veteran with the development of the claims for service connection a cervical spine disability and a right shoulder disability.

The matters are REMANDED for the following action:

1. Obtain updated VA treatment records from November 2020 to the present.

2. Schedule the Veteran for a VA examination to determine the likely etiology of her cervical spine disability. The Veteran’s claims file should be reviewed by the examiner in conjunction with the examination.

3. Schedule the Veteran for a VA examination to determine the likely etiology of her right shoulder disability. The Veteran’s claims file should be reviewed by the examiner in conjunction with the examination. 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P. McDaniels, 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.