Citation Nr: 21015043 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 19-37 168 DATE: March 16, 2021 ORDER The application to reopen a claim of service connection for a lumbar spine disability is granted. Service connection for lumbar spine stenosis and spondylolisthesis is granted. The application to reopen a claim of service connection for right lower extremity peripheral neuropathy is granted. Service connection for right lower extremity radiculopathy, as associated with lumbar spine stenosis and spondylolisthesis, is granted. The application to reopen a claim of service connection for left lower extremity peripheral neuropathy is granted. Service connection for left lower extremity radiculopathy, as associated with lumbar spine stenosis and spondylolisthesis, is granted. The application to reopen a claim of service connection for a left shoulder condition is granted. Service connection for degenerative joint disease (DJD) and residuals of total arthoplasty is granted. The application to reopen a claim of service connection for sinusitis is granted. REMANDED Service connection for a cervical spine disability. Service connection for sinusitis. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability is related to service. 2. The Veteran’s right lower extremity and left lower extremity radiculopathy were caused by the Veteran’s service-connected lumbar spine disability. 3. The Veteran’s left shoulder condition had its onset during service. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine stenosis and spondylolisthesis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right lower extremity and left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for left shoulder DJD and residuals of total arthoplasty have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1961 to June 1981. The case is on appeal from an August 2018 rating decision. The Veteran testified at a November 2020 Board hearing. 1. Whether new and material evidence has been received to reopen a claim of service connection a lumbar spine disability. By a March 2013 rating decision, a claim of service connection for a lumbar spine disability (characterized as spondylolisthesis) was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in April 2018 (a May 2017 VA letter referenced an intent to file from that month). No new evidence or notice of disagreement (NOD) was received by VA within one year of the issuance of the March 2013 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for a lumbar spine disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also May 2018 VA Opinion. 2. Service connection for a lumbar spine disability. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to establish direct service connection, three elements must be established: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The third element is often referenced as the “nexus” element. 38 U.S.C. § 5107(b) states that “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, [VA] shall give the benefit of the doubt to the claimant.” 38 C.F.R. § 3.102 states that “[w]hen…a reasonable doubt arises regarding service origin…or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.” Analysis With respect to the first element of direct service connection, various evidence shows a lumbar spine disability, to include a May 2018 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) that noted diagnoses of spinal stenosis and spondylolisthesis. As such, the Board finds that the first element of direct service connection has been met. With respect to the second element of direct service connection, the Veteran has reported that he experienced the onset of back symptoms during his active service. At the November 2020 Board hearing, when asked how he first injured his back, the Veteran described during his active service being on a submarine and “taking the boxes of equipment and also food—canned food, and then bended over passing through the hole right between my legs, and I just—somebody said something to me, and I moved a little bit. And I felt something go in my back.” He further stated that “about an hour later…I had pain at that time.” He additionally stated that “I had a lot of pain. And when I retired, it was the same way, too.” The Veteran’s service treatment records (STRs) include a July 1979 STR that noted a complaint of “ache mid back…Has been moving furniture” and an impression of strain was noted. An October 1979 STR noted back pain, noted a complaint of “pain [right] buttock,” referenced the Veteran as slipping on stairs and noted an impression of rule out trochanteric bursitis. A January 1980 Report of Medical Examination noted upon clinical evaluation that the Veteran’s spine was normal, noted no relevant defects or diagnoses and noted that the Veteran was qualified for discharge and re-enlistment. On an undated Report of Medical History form that appears to accompany the examination, the Veteran denied ever having or having now recurrent back pain. An additional January 1980 STR, titled Interim Report, included a heading of “significant responses reported by the examinee on the self administered health questionnaire” and listed, as relevant, “he has or has in the past had back pain or problems.” A June 1981 Report of Medical Examination, with the purpose of examination noted as for retirement, noted upon clinical evaluation that the Veteran’s spine was normal, noted no relevant defects or diagnoses and noted that the Veteran was qualified for retirement. On an accompanying Report of Medical History form, the Veteran stated that he was “in good health” except for medical issues unrelated to his back. He reported ever having or having now recurrent back pain. In a section of the form completed by a medical professional, it was stated “[low back pain], muscular, NCD,” with “NCD” presumably standing for either not considered disabling or disqualifying. In review, the Board finds the Veteran’s lay statements as to his in-service experiences and symptoms to be credible. In addition, as outlined, various STRs reflected treatment and complaints related to the back. Overall, the Board finds that the second element of direct service connection has been met. With respect to the third and final element of direct service connection, a nexus between the Veteran’s current lumbar spine disability and his active service, the Veteran has primarily contended that, essentially, he experienced the onset of back symptoms during his active service and that such have continued since that time. In this regard, at the Board hearing, the Veteran testified that subsequent to the onset of his back pain after lifting while on a submarine, that “from that time on…if I turned a certain way or front to back or sideways, I was getting this pain that I never had before. And so I live with that…it never stopped” and that “it kept on…giving me trouble. And then it would go away for a while because I wasn’t doing anything, and then afterwards, I would be doing something, like sports or whatever, and it would come back. And I didn’t think it was that bad, but it kept getting worse at a slow rate.” The Veteran variously provided other similar reports. See October 2012 Veteran Statement (“Throughout most of the 70’s I had recurrent back pain…into 1980, 1981 it was more often than not a dull recurring lower back pain…As I got older [and] my conditioning was not as good as when I was in my 20’s [and] 30’s it became more troublesome” and also referencing moving equipment on submarines as a possible reason for his in-service back pain); February 2013 Veteran Statement (“I have had back pains since the late 60’s”); March 2013 VA Back DBQ (noting the Veteran’s report of hurting his back “when they were lowering supplies down a ladder,” that “his back got really worse in the 70’s” and that he had “ongoing problems with his lumbar spine while on active duty”); March 2019 Veteran Statement (“My back was injured in the mid 70’s lifting heavy supply boxes. Over the years till the [1991] MRI [and] then the repairing surgery the Navy Doc’s gave me exercises [and] use of Aspirin”). In addition, at the Board hearing, the Veteran’s spouse testified that the Veteran had longstanding back pain. See November 2020 Board Hearing Transcript, Pages 13, 17 (“he’s in so much pain….I don’t think he’s telling you enough of how much pain he’s been in—in the service and now. I mean I’ve lived…with him a long time” and “it’s been 50 years of him living with this, and I’ve heard all the stories, so I know… His back, I know—almost ever since we were married 28 years ago, was from a lot of what he was doing when he was in” service). Also of record are extensive post-service medical records related to the Veteran’s lumbar spine. These records included a May 1991 National Naval Medical Center Bethesda narrative summary record for an inpatient hospitalization. This record noted a past medical history of “grade I spondylolisthesis of the lumbar spine” and noted “chronic low back pain attributed to [the Veteran’s] well-known grade I spondylolisthesis.” It was referenced that the Veteran underwent a May 1991 lumbosacral spine MRI that “revealed a grade I spondylolisthesis of lumbar vertebra 5 and sacral vertebra 1 and a disk space narrowing of L3-4 and L4-5.” Also of record are various additional records related to the Veteran’s lumbar spine that are dated from the 1990s to 2018, which included records related to multiple surgeries. These records included records indicating longstanding back problems. See November 2001 Dr. S.R. Medical Record (“presenting with problems with the back and right leg. He has been symptomatic for many years”); February 2003 Ellsworth Air Force Base Medical Record (“history of chronic back pain. This initially happened when he slipped on a submarine”); March 2003 Dr. E.S. Records (a letter stating that the Veteran “has longstanding history of low back pain. He has had some previous trauma. He has been very involved with athletics and it has always been a bothersome problem, but usually responding to conservative measures” and a treatment record noting a chief complaint of “[r]ight lumbosacral pain with radiation into the right leg” and stating that the Veteran “has had these symptoms for quite a number of years now”). The record contains multiple, and conflicting, medical opinions as to the issue of nexus. First, the Veteran was afforded a VA examination in March 2013 and a Back Conditions DBQ was completed by Physician Assistant. A negative direct service connection nexus opinion was also provided (by way of a clarifying March 2013 addendum) that the “Veteran[’]s back condition is less than likely related to active duty.” The accompanying rationale stated that “[t]here is no medical evidence to support that this [V]eteran…had the significant trauma to his back that would have caused ongoing issues he has had with his low back. There is no medical evidence to support ongoing issues with his back condition dating from separation in 1981 to 2003” and that “[m]ore medical evidence is needed to connect [V]eteran’s low back pain statement on his separation with the condition that is documented in 2003.” Upon review, the Board affords this opinion minimal probative value. Initially, by the repeated use of the phrase medical evidence, “it appears that the medical examiner impermissibly ignored the [Veteran’s] lay assertions” as to experiencing in-service back pain and pain since service, as discussed above. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Further, the statement that “[t]here is no medical evidence to support ongoing issues with his back condition dating from separation in 1981 to 2003” is factually inaccurate. Evidence of record at the time of the March 2013 opinion included multiple records dated prior to 2003, to include an April 1997 x-ray report of the lumbosacral spine that noted an impression of “degenerative changes at several levels with degenerative disc disease.” See also November 2001 Dr. S.R. Medical Record (“presenting with problems with the back and right leg. He has been symptomatic for many years”). Moreover, as noted above, subsequently received medical evidence included May 1991 hospitalization records from the National Naval Medical Center Bethesda that addressed the Veteran’s back. As such, medical evidence showed issues related to the Veteran’s back prior to 2003 and thus the VA opinion was based on an inaccurate factual premise and it is accordingly afforded minimal probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (“An opinion based upon an inaccurate factual premise has no probative value”); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (“An opinion is adequate where it is based upon consideration of the veteran’s prior medical history”). Second, the Veteran was afforded a VA examination in May 2018 and a Back Conditions DBQ was completed by a Nurse Practitioner. On the DBQ under the medical history section, it was stated that “[b]ack pain began in early 1990s. Pain worsened 1992 when he was lifting while on a submarine. Felt a pop in low back.” A positive direct service connection nexus opinion was also provided, specifically that “[t]he claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness.” The accompanying rationale stated that the “Veteran had no issues related to the claimed condition prior to military service. Onset of the condition was during service, documented in the [STRs]. There is evidence of current, chronic and continuous treatment and care. A nexus has been established” and that the “Veteran reported occasional back strain prior to date when he began to have chronic pain, which was with lifting during his service, felt a pop in his back. Symptoms and MRI reports demonstrate chronic and continuous treatment and care.” As noted, the DBQ stated that the Veteran’s back pain began in the 1990s and worsened in 1992, which would have been after the Veteran’s active service. In the same section of the DBQ, however, the examiner noted that the Veteran’s back pain worsened while on a submarine, a location more typically associated with military service. Moreover, the accompanying opinion rationale clearly stated “[o]nset of the condition was during service, documented in the [STRs]” and that “Veteran reported occasional back strain prior to date when he began to have chronic pain, which was with lifting during his service.” Reading the opinion as a whole, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that the portion of the DBQ noting back pain as beginning in the 1990s was an inadvertent error and the Board does lessen the probative value of the provided positive opinion based on such error. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a “medical report must be read as a whole”). Overall, the Board finds this opinion probative as to the issue of nexus. The RO subsequently requested a VA opinion that would “review conflicting medical opinions” and referenced was the May 2018 DBQ’s notation of back pain beginning in the 1990s. The requested opinion was provided in July 2018 by a Physician Assistant and the opinion stated that “[b]ased on review of the medical records in the claims file, it is less likely than not (less than 50 percent probability) that the Veteran’s back condition Lumbar Spondyloli[s]thesis [and] Lumbar Spinal stenosis [status post] multiple surgeries was incurred in or caused by service.” The accompanying rationale discussed the prior March 2013 VA opinion and stated that “[t]his negative Medical opinion for service connection is upheld.” The 2018 opinion rationale also discussed the prior May 2018 VA opinion and stated that “[t]he Medical Opinion for service connection is based on the chronicity of the Veteran’s back condition - which all occurred over 10 years after service with no objective medical nexus related to service” and that “[t]here is no basis for the development of the spinal spondyloli[s]thesis due to muscle strain in service.” Upon evaluation, the Board affords this opinion some probative value. In this regard, the opinion offered some new medical rationale, specifically the comment that “[t]here is no basis for the development of the spinal spondyloli[s]thesis due to muscle strain in service.” This opinion, however, was similar to the March 2013 VA opinion in that it was not clear that the medical professional considered, as such was not specifically addressed, the Veteran’s lay assertions as to experiencing in-service back pain and pain since service, as discussed above. For this reason, the Board affords this opinion diminished probative value. In review, as to the issue of nexus, of record is a negative March 2013 VA opinion that the Board has found to be of minimal probative value and a negative July 2018 VA opinion that the Board has found to be of some probative value, as well as a positive May 2018 VA opinion that the Board has found to be probative. Overall, the Board finds that the evidence is at least in relative equipoise (an approximate balance) as to whether the Veteran’s lumbar spine disability is related to his active service and, resolving reasonable doubt in the Veteran’s favor, the Board finds that such a nexus exists. Accordingly, all three elements of direct service connection have been met in this case. In sum, the Board finds that, after resolving reasonable doubt in the Veteran’s favor, his lumbar spine disability is related to service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for lumbar spine spinal stenosis and spondylolisthesis is warranted. 3. Whether new and material evidence has been received to reopen a previously denied claim of service connection for right lower extremity peripheral neuropathy. 4. Whether new and material evidence has been received to reopen a previously denied claim of service connection for left lower extremity peripheral neuropathy. By a March 2013 rating decision, claims of service connection for right lower extremity and left lower extremity peripheral neuropathy were denied. As noted above, the March 2013 rating decision is final. The Board finds that new and material evidence has been submitted so that the previously denied claims of service connection for right lower extremity and left lower extremity peripheral neuropathy are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also May 2018 VA Opinion. 5. Service connection for right lower extremity radiculopathy 6. Service connection for left lower extremity radiculopathy Legal Criteria In addition to service connection on a direct basis, service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis The Veteran has contended that service connection for bilateral lower extremity neurological disabilities is warranted on a secondary basis to a primary spine disability. See April 2012 VA Form 21-526 (listing a disability of “Bilateral Lower extremity neuropathy (secondary to spine condition)”), February 2013 Veteran Statement, November 2020 Board Hearing Transcript, Pages 2, 18. As outlined above, the Board has granted service connection for a lumbar spine disability. The Veteran was not afforded a VA examination, and no VA opinion was obtained, specifically for these claims. As noted above, the Veteran was afforded a May 2018 VA examination for his lumbar spine claim and a Back Conditions DBQ was completed. The DBQ noted diagnoses of spinal stenosis and spondylolisthesis. The DBQ also noted, under a heading of “if there are additional diagnoses pertaining to thoracolumbar spine (back) conditions, list using above format,” a diagnosis of L4-L5 radiculopathy. Under the medical history section, the DBQ noted “[i]ntermittent radiation of pain to bilateral legs.” The DBQ also noted that the Veteran had radicular pain or any other signs or symptoms due to radiculopathy and noted constant pain, intermittent pain, numbness and paresthesias and/or dysesthesias for the bilateral lower extremities. The nerve root involved was noted as “L4/L5/S1/S2/S3 Nerve Roots (sciatic nerve)” and it was noted that both sides were affected. Upon review, while the DBQ did not explicitly state that the Veteran had radiculopathy that was caused by a lumbar spine disability, when reading the DBQ as a whole and resolving reasonable doubt in the Veteran’s favor, the Board finds that the DBQ indicated that the Veteran had bilateral lower extremity radiculopathy that was caused by his (as granted herein) service-connected lumbar spine disability. See Monzingo, 26 Vet. App. at 106. In sum, the Board finds that, when resolving reasonable doubt in the Veteran’s favor, his right lower extremity and left lower extremity radiculopathy were caused by now service-connected lumbar spine disability. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection is warranted for right lower extremity and left lower extremity radiculopathy, as associated with service-connected lumbar spine disability. 7. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a left shoulder condition. By a March 2013 rating decision, a claim of service connection for a left shoulder condition (characterized as DJD) was denied. As noted above, the March 2013 rating decision is final. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for left shoulder DJD is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also November 2020 Board Hearing Transcript. 8. Service connection for a left shoulder disability Analysis The legal criteria for service connection is listed above. The Veteran’s STRs included various notes related to the left shoulder. A January 1979 STR noted a complaint of left shoulder pain and noted “[a]bout 2 y[ea]rs ago struck shoulder in submarine. [Veteran] ‘works out’ physically—bike, runs, golf, horse riding, handball” and noted an impression of chronic bursitis. A later January 1979 STR noted x-rays of the left shoulder were negative and noted a diagnosis of bicep tendonitis left shoulder. A March 1979 orthopedic clinic STR noted “pain persist left shoulder area—neg[ative] shoulder x-rays.” An impression was noted of “biceps long [and] short hood tendonitis” and “[acromioclavicular (AC)] arthritis.” An undated STR noted long biceps tendon left tendonitis and “A-C arthritis [left] shoulder.” An April 1979 orthopedic clinic STR noted “biceps tendonitis much better” and also “A-C joint still very painful.” It was further noted “x-ray: no obvious DJD [left] A-C joint,” but also “poor quality x-rays.” An impression was noted of “DJD [left] A-C joint.” An October 1979 STR, related primarily to different medical issues, stated “presently [the Veteran] is under care of [left] shoulder arthritis.” A January 1980 Report of Medical Examination noted upon clinical evaluation that the Veteran’s upper extremities and “spine, other musculoskeletal” were normal, noted no relevant defects or diagnoses and noted that the Veteran was qualified for discharge and re-enlistment. On an undated Report of Medical History form that appears to accompany the examination, the Veteran reported ever having or having now painful or “trick” shoulder or elbow and stated “variable treatment [and] medication…for tendinitis in left shoulder [and] arm and poss[ible] degenerative arthritis in clavicle/shoulder joint. It is not better.” An additional January 1980 STR, titled Interim Report, included a heading of “significant responses reported by the examinee on the self administered health questionnaire” and listed, as relevant, “he has or has had a painful or ‘trick’ shoulder” and “a doctor has told him that he had one or more of the following: osteoarthritis (from wear and tear).” A June 1981 Report of Medical Examination, with the purpose of examination noted as for retirement, noted upon clinical evaluation that the Veteran’s upper extremities and “spine, other musculoskeletal” were normal, noted no relevant defects or diagnoses and noted that the Veteran was qualified for retirement. On an accompanying Report of Medical History form, the Veteran reported ever having or having now painful or “trick” shoulder or elbow and stated “in good health except: left clavicle/shoulder.” In a section of the form completed by a medical professional, it was stated “[DJD left] shoulder. Being treated at [National Naval Medical Center] at present.” Upon review of the Veteran’s STRs, and resolving reasonable doubt in the Veteran’s favor, the Board finds that a chronic disease of left shoulder arthritis was shown during active service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As noted, multiple 1979 STRs noted left shoulder arthritis. The Board notes that DJD is arthritis. See Dorland’s Illustrated Medical Dictionary 1344 (32nd ed. 2012) (defining osteoarthritis as “a noninflammatory degenerative joint disease” and stating “[c]alled also…degenerative joint disease”). Arthritis is a chronic disease under 38 U.S.C. § 1112; 38 C.F.R. § 3.309(a). There is a presumption of service connection for a chronic disease that manifests during service and then again at any later date, no matter how remote. See Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 2008). Post-service evidence of record indicated that there were subsequent manifestations of left shoulder arthritis. See December 2011 MRI Report (noting an impression of “[s]evere degenerative changes of the glenohumeral joint” and “[m]oderate degenerative changes of the AC joint”); January 2012 CT Report (noting a conclusion of “[s]evere glenohumeral and moderate [AC] osteoarthritis”); January 2012 Dr. L.P. Treatment Record (noting an assessment of left shoulder osteoarthritis). Although there is a March 2013 negative direct service connection VA medical opinion, the Board does not find this is affirmative evidence to the contrary of in-service onset or show an intercurrent cause. Thus, the Veteran’s post-service left shoulder arthritis is considered the same chronic disease that manifested during service. See Groves, 524 F.3d a t1306. Moreover, although arthritis is not specifically shown recently, this because the evidence shows that the disease progressed to a total left shoulder replacement in August 2012. See August 2012 Mayo Clinic Orthopedic Surgery Note. In this regard, the medical records contemporaneous to the appeal period are limited, but included an April 2018 medical record from Dr. L.P that noted that the Veteran was “in for follow-up on his left total shoulder arthroplasty,” referenced x-rays and noted an assessment of “[a]ftercare following joint replacement surgery” and “[p]resence of left artificial shoulder joint,” without notation of arthritis. An earlier February 2012 medical record from Dr. L.P. stated, however, that the Veteran “had endstage osteoarthritis and needs a total shoulder arthoplasty.” In sum, the Board finds that, when resolving reasonable doubt in the Veteran’s favor, his left shoulder arthritis (DJD), with subsequent left shoulder total arthroplasty, had its onset during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for left shoulder DJD and residuals of total arthoplasty is warranted. 9. Whether new and material evidence has been received to reopen a previously denied claim of service connection for sinusitis. By a March 2013 rating decision, a claim of service connection for sinusitis was denied. As noted above, the March 2013 rating decision is final. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for sinusitis is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also November 2020 Board Hearing Transcript. The reopened claim will be further addressed in the remand section. REASONS FOR REMAND 1. Service connection for a cervical spine disability. The Veteran’s STRs included a January 1971 STR reflecting treatment at the emergency room for “neck pain and stiffness” and a diagnosis was noted of cervical muscle sprain. A December 1971 STR reflected treatment at the emergency room for upper back stiffness and noted an impression of back muscle strain. At the November 2020 Board hearing, the Veteran’s representative stated that “I’m going to move on to your back, and I’m going to kind of discuss that as a whole. And I know that it’s kind of broken down into three parts, but I know it’s hard for you to kind of differentiate those three areas, so I’m just going to ask them as a whole.” In response to a question from his representative of “[h]ow did you first injure your back and neck,” the Veteran reported the onset of back pain while lifting on a submarine, as was discussed above in relation to the lumbar spine disability claim. As outlined in the lumbar spine disability section, the Veteran also, essentially, testified that he had back symptoms since active service. At the hearing, the Veteran did not explicitly state that such symptoms included his cervical spine or neck, but he also did not explicitly state that they did not, as he generally only referenced his back. The Veteran has not been afforded a VA examination for this claim. Based on the evidence, the Board finds that the requirements to obtain a VA examination and opinion have been met and that therefore remand is warranted. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is also advised that he should inform VA if he has received VA treatment. Currently, no VA treatment records are of record. It is not clear from the record that the Veteran has received VA treatment, but an April 2018 private medical record from Dr. S.R. stated that the Veteran “stated that he is seeing a doctor at the VA tomorrow.” 2. Service connection for sinusitis. The Veteran was afforded a VA examination in October 2019 and a Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx DBQ was completed. A diagnosis was noted of acute sinusitis, resolved and chronic rhinitis. The examiner provided a negative direct service connection opinion as to sinusitis, but a positive opinion as to rhinitis (which the RO granted service connection for). The accompanying rationale stated “chronic sinusitis is not identified on current exam. Even with recurrent documentation of a reported history of sinusitis, STR’s document treatment of only acute sinusitis [one time]. Because symptoms at that time were ongoing for two weeks it was mislabeled chronic, yet negative for a prolonged episode” and “post-military care has remained negative for chronic sinusitis per clinical exam.” While the examiner stated that “chronic sinusitis is not identified on current exam,” at the November 2020 Board hearing the Veteran testified that in the last several years he was told he had sinusitis by his general practitioner Dr. W. See November 2020 Board Hearing Transcript, Page 8. As such, while the Veteran may not have had sinusitis at the time of the October 2019 VA examination, he may have had sinusitis at some point during the appeal period, which would potentially allow for service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (“With regard to the requirement that a claimant have a current disability before service connection may be awarded for that disability…this requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim”). Also, while the opinion stated that “post-military care has remained negative for chronic sinusitis per clinical exam,” as noted, the Veteran suggested that he had received such treatment from Dr. W. at the November 2020 Board hearing. In addition, a December 2011 record from Nurse Practitioner J.K. stated that the Veteran had “complaints of continued nasal drainage” and noted an assessment of “[p]ersistent rhinosinusitis.” It does not appear that this record was considered in the October 2019 VA opinion. Further, even if such was accurate, it is not clear the significance of a lack of “post-military care,” as the Veteran has variously reported, essentially, having chronic sinus symptoms since his active service and that he self-treated such symptoms. See October 2012 Veteran Statement (“started (sinusitis) or should I say became very troubling in the 60’s…I have endured it for many years”); March 2019 Veteran Statement (“My sinuses started getting bad in the late 60’s [and] a Doctor…showed me how to clean my sinus [and] infections if not around a specialist. I still use it as it can clear my problem in 2 to 3 days”); October 2019 Sinusitis DBQ (similar reports); November 2020 Board Hearing, Pages 5-9 (similar reports, including that sinusitis comes “about two or three times a month” and that he has used the self-treatment method of cleaning his sinuses taught during service “all my life now”). Overall, for the reasons outlined, the Board finds that the October 2019 VA opinion was not entirely sufficient and that remand is accordingly warranted to obtain a new VA examination and opinion. In addition, as noted, at the November 2020 Board hearing the Veteran testified that in the last several years he was told he had sinusitis by his general practitioner Dr. W. No records from this provider during the appeal period are currently of record. As such, while on remand, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records, to include any records from Dr. W., or complete a release for such providers; if any releases are returned, VA must attempt to obtain the identified records. See 38 C.F.R. § 3.159(e)(2) (stating that “[i]f VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records”). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he either provides any outstanding relevant private treatment records, to include any records from Dr. W. related to sinusitis, or completes a release for such providers; if any releases are returned, attempt to obtain the identified records. 2. Afford the Veteran a VA examination with respect to his cervical spine disability claim. The examiner must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any cervical spine disability had its onset during active service or is related to an in-service injury, event, or disease. The examiner’s attention is invited to: (a.) STRs noting treatment and complaints of neck and upper back symptoms. See January 1971 STR (reflecting treatment at the emergency room for “neck pain and stiffness” and a diagnosis of cervical muscle sprain); December 1971 STR (reflecting treatment at the emergency room for upper back stiffness and an impression of back muscle strain). (b.) The Veteran’s November 2020 Board hearing testimony, where he, essentially, reported experiencing the onset of nonspecific back symptoms during his active service and that such have continued since that time. See November 2020 Board Hearing Transcript, Pages 10-11. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. 3. Afford the Veteran a VA examination with respect to his sinusitis claim. The examiner must provide an opinion addressing the following: (a) Does the Veteran have sinusitis, or has he had sinusitis during the time period of the claim (since April 2018 or shortly before)? If not, it should be explained why this is so. (b) If so, whether it is at least as likely as not (i.e., probability of 50 percent or greater) that sinusitis had its onset during active service or is related to an in-service injury, event, or disease. The examiner’s attention is invited to: (a.) STRs noting treatment and complaints of sinusitis. See February 1969 STR (noting a past history of sinusitis and an impression of chronic sinusitis); February 1969 STR Consultation Sheet (noting an impression of chronic sinusitis); June 1969 STR Consultation Sheet (noting a provisional diagnosis of sinusitis, chronic and acute intermittently); October 1978 STR (noting sinus congestion); November and December 1978 STR Consultation Sheet (noting recurrent sinus problems and a history of recurrent sinusitis); January 1980 Interim Report STR (“he has had severe sinusitis”); March 1974, October 1977, January 1980 and June 1981 Report of Medical History forms (with the Veteran reporting ever having or having now sinusitis and, for the June 1981 form, in a section of the form completed by a medical professional noting mild sinusitis). (b.) The Veteran’s various reports of, essentially, having chronic sinus symptoms since his active service and that he self-treated such symptoms. See October 2012 Veteran Statement (“started (sinusitis) or should I say became very troubling in the 60’s…I have endured it for many years”); March 2019 Veteran Statement (“My sinuses started getting bad in the late 60’s [and] a Doctor…showed me how to clean my sinus [and] infections if not around a specialist. I still use it as it can clear my problem in 2 to 3 days”); October 2019 Sinusitis DBQ (similar reports); November 2020 Board Hearing, Pages 5-9 (similar reports, including that sinusitis comes “about two or three times a month” and that he has used the self-treatment method of cleaning his sinuses taught during service “all my life now”). (c.) Post-service medical records noting treatment and complaints related to the sinuses. See May 1991 National Naval Medical Center Bethesda Narrative Summary Record (“Past medical history is significant for…chronic sinusitis”); March 2003 Spine Center Record (noting “occasional sinus problems”); May 2006 Spine Center Record (noting “sinus problems”); December 2011 Nurse Practitioner J.K. Record (stating that the Veteran had “complaints of continued nasal drainage” and noting an assessment of “[p]ersistent rhinosinusitis”); January 2012 and February 2012 Dr. L.P. Records (noting recurrent sinusitis). For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.