Citation Nr: 21014483 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-44 039 DATE: March 12, 2021 ORDER Service connection for a neck disability, to include as secondary to lumbosacral strain, is granted. REMANDED The issue of entitlement to a disability rating in excess of 20 percent prior to November 21, 2016 and in excess of 40 percent thereafter for lumbosacral strain is remanded. VETERAN’S CONTENTIONS The Veteran contends that he first experienced symptoms related to his neck disability during his active service. Alternately, he contends that he has a neck disability secondary to his service-connected lumbosacral strain. FINDING OF FACT The Veteran’s neck disability had its clinical onset during his period of active service. CONCLUSION OF LAW The criteria for service connection for a neck disability are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1975 to September 1978. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Jurisdiction was subsequently transferred to the RO in Roanoke, Virginia. These matters were previously before the Board at which times they were remanded for additional development. Entitlement to service connection for a neck disability, to include as secondary to lumbosacral strain Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted through the application of statutory presumptions for chronic conditions, such as arthritis. See 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Arthritis is included under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant's separation from service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1336-38. The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a current disability, which must be found before entitlement to service connection can be granted. Further, service connection may be established on a secondary basis for a disability which was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). The Veteran contends that he first experienced symptoms related to his neck disability during his active service. Alternately, he contends that he has a neck disability secondary to his service-connected lumbosacral strain. After a review of the evidence of record, the Board finds that the preponderance of the evidence supports a finding that the Veteran developed his neck disability during his period of active service. In addressing the criteria of a current diagnosis, June 2012 and January 2020 VA Neck (Cervical Spine) Conditions examination reports document current diagnoses of degenerative arthritis of the spine and cervical spondylosis. In addressing in-service incurrence, the Veteran's service treatment records (STRs) are void of complaints of or treatment for a neck disability. However, as noted above, the Veteran contends that he first experienced symptoms related to his neck disability during his active service. In addressing nexus, the evidence of record includes an opinion from Dr. N.A.O. concluding that it is more probable than not that the Veteran’s neck disability is related to his duties while in service. Dr. N.A.O. noted that the Veteran presented with painful range of movement and muscle spasm at the cervical area and reasoned that during active service, as part of his duties, the Veteran used to carry and lift heavy equipment while mounting a gas station. Dr. N.A.O. explained that continuous bending, moving, and lifting heavy weights can put a lot of strain at the back area, causing continuous spasm and inflammatory changes which in the long term can cause degenerative changes at the column area. These problems cause bad posture, loss of correct alignment, and loss of curvature of the cervical, thoracic, and lumbar lordosis, putting more stress on one side of the vertebras than the other and by consequence can cause disc bulging and herniation, also radiculopathy and neuropathy. The opinion from N.A.O. was based upon a review of the Veteran's medical records and consideration of his reported history; and it was accompanied with a rationale which is consistent with the evidence of record. Hence, the opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Board notes that consistent with N.A.O.’s rationale, the Veteran’s DD Form 214 confirms that the Veteran had a military occupational specialty of Petroleum Supply Specialist. The Board acknowledges that the evidence of record includes VA opinions finding that the Veteran’s neck disability is related to the aging process. However, in the light of the aforementioned positive evidence of record, and resolving all doubt in the Veteran’s favor, the Board finds that the evidence is at least in equipoise with respect to the issue of whether the Veteran’s neck disability is related to his active service. In light of the foregoing, the Board finds that the preponderance of the evidence supports the claim, and the benefit sought on appeal is granted. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS FOR REMAND Entitlement to a disability rating in excess of 20 percent prior to November 21, 2016 and in excess of 40 percent thereafter for lumbosacral strain is remanded. The examinations of record are inadequate because they do not include the range of motion testing results required by the Court in Correia v. McDonald, 28 Vet. App. 158 (2016). Although range of motion testing was performed during the June 2012, November 2016, and January 2020 VA examinations, the examiner did not indicate whether range of motion testing was conducted in passive and nonweight-bearing. In Correia, the Court found that 38 C.F.R. § 4.59 requires that VA joint examinations must, where possible, include range of motion results for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Id. at 168-169. The August 2018 and September 2020 Board remand directives specifically requested that the examiner include range of motion testing in active motion, weight-bearing, passive motion, and non-weight-bearing, or state that the previous examinations were adequate and no additional ROM testing was medically required to adequately assess the Veteran's pain on motion. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A remand by the Board also confers on a claimant, as a matter of law, the right to compliance with remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board finds that an addendum opinion is required, and the examiner should render a retrospective opinion on the measurements required by Correia. The Board notes that the Veteran is already in receipt of a 40 percent rating from November 21, 2016 onward and a 40 percent rating is the maximum schedular rating available for limitation of motion of the thoracolumbar spine under the General Rating Formula, to include the functional equivalent of limitation of motion. Therefore, the Board will limit the addendum opinion to any examinations performed prior to November 21, 2016. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Forward a copy of this remand to a qualified examiner for the purpose of obtaining an opinion (based on file review only) regarding the adequacy of neck range of motion (ROM) testing conducted on prior physical examination. (a.) On examination in June 2012 the examiner did not indicate whether ROM was tested in active, passive, weight-bearing, and/or nonweight-bearing conditions. If the foregoing were not tested, please state whether additional ROM testing is medically required to adequately assess the Veteran's pain on motion. Please explain why or why not. (b.) Please state whether there is any structural abnormality of the involved joint (that is to say, whether normal excursion of the joint is impaired/not possible). If there is a structural abnormality of the joint, does that abnormality impact the joint such that passive range of motion in this case would be more limited than active? (c.) Please explain whether testing in weight-bearing conditions is more demonstrative of the degree of pathology in the Veteran's case, or whether testing in nonweight-bearing conditions would better demonstrate the severity of the disability. Please explain why or why not. (d.) If and only if, the examiner determines that additional ROM testing is medically required to adequately assess the Veteran's ROM during the June 2012 examination, please provide a retrospective opinion estimating what the ROM would have been (based on file review only). (e.) If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the Agency of Original Jurisdiction (AOJ) should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.