Citation Nr: 21021167 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-28 699 DATE: April 12, 2021 REMANDED Entitlement to service connection for a cervical spine disability to include as secondary to service-connected right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability to include as secondary to service-connected right shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1980 to February 1981, and from May 1986 to February 2006. The Veteran testified at a video conference hearing (hearing) in November 2018 before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. However, the VLJ that conducted the November 2018 Board of Veterans’ Appeals (Board) hearing is no longer at the Board. The Veteran was informed of this and his right to request a new hearing in a February 2021 letter. The Veteran did not respond to this letter within 30 days, indicating his desire for another hearing. Thus, the Board is able to decide the appeal based on the evidence of record. This matter was previously remanded by the Board of Veterans Appeals (BVA) in April 2020 for additional development. It now returns for further appellate review. 1. Cervical spine disability Unfortunately, the Board finds that a remand is necessary for an addendum medical opinion for the reasons discussed below. The October 2020 VA medical examiner provided a negative nexus opinion for the Veteran’s cervical spine disability. See October 2020 VA Medical Opinion Disability Benefits Questionnaire (DBQ). She reasoned that “[b]ecause there are no service connected [sic] records of this claimed condition the opinion is less likely than not that the current condition is due to flying high G-force while wearing a helmet.” Id. The Board finds that the October 2020 VA medical opinion is inadequate for adjudication as it improperly relies on the absence of evidence, specifically a lack of treatment records. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence).  Notably, the Veteran testified at the November 2018 that he was briefly seen for cervical spine complaints during service. Additionally, the October 2020 VA examiner did not address the Veteran’s contention that his cervical spine disability was secondary to his service-connected right shoulder disability. See September 2012 VA Form 21-4138. In fact, the examiner did not provide a secondary service connection nexus opinion for the Veteran’s cervical spine disability. Accordingly, the Board lacks sufficient information to decide the claim. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (stating that a VA medical opinion lacks probative value when the examiner fails to address a veteran’s lay reports of his medical history and symptoms).  Thus, based on the foregoing, the Board finds a remand is necessary for an addendum medical opinion to address the nature and etiology of the Veteran’s cervical spine disability. 2. Left shoulder disability The Board finds that a remand is also warranted for the Veteran’s left shoulder claim because the October 2020 VA medical opinion does not provide the necessary information to decide the claim. The October 2020 VA examiner provided a negative nexus opinion addressing whether the Veteran’s left shoulder disability could be secondary to his service-connected right shoulder disability. Specifically, the examiner stated as follows: Left shoulder disability is less likely than not proximately due to or the result of the Veteran’s impingement syndrome with degenerative joint diseases of the right shoulder. Veteran injury to left shoulder occurred in 4/9/11 due to snow machine related accident. There are no records to corroborate an earlier complaint of left shoulder pain that may suggest the snow machine aggravated a prior injury. See October 2020 VA Medical Opinion DBQ. While the medical opinion appears to address aggravation, the examiner discussed aggravation in terms of the snow machine injury aggravating the Veteran’s left shoulder disability instead of whether his left shoulder disability was aggravated by his service-connected right shoulder disability. Secondary service connection may be established either under causation or aggravation theories. The phrases “due to” or “related to” does not address the “aggravation” aspect of secondary service connection. See Allen v. Brown, 7 Vet. App. 439 (1995). Here, the examiner’s failure to address aggravation renders the October 2020 VA medical opinion incomplete. Additionally, the October 2020 VA examiner did not address the Veteran’s assertions that he damaged his left shoulder as a result of compensating for his service-connected right shoulder injury. See September 2012 VA Form 21-4138. Because the examiner did not address the Veteran’s contention, the medical opinion lacks probative value. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Accordingly, the claim is remanded for an addendum medical opinion. The Board notes the claims file reflects that the Veteran has been receiving treatment from Anchorage VA Medical Center (VAMC) including Juneau Community Based Outpatient Clinic (CBOC), and Mat-Su CBOC, and that records dated through March 2020 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016).    Thus, on remand the RO should obtain any outstanding VA treatment records to include records from the Anchorage VAMC, Juneau CBOC, and Mat-su CBOC.    The matters are REMANDED for the following action: 1. Obtain the Veteran’s comprehensive VA treatment records for the period from March 2020 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers.  See 38 C.F.R. § 3.159(c)(3) (2020).   The Board observes that the Veteran has been treated at various VA facilities, to include Anchorage VAMC, Juneau CBOC, and Mat-su CBOC.    2. Obtain an addendum opinion from a medical professional with appropriate experience to render an etiology opinion for the Veteran’s cervical spine disability.  If the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination(s). Any clinically indicated testing and/or consultations should be performed.   3. The examiner must review the claims folder including this remand and acknowledge such review in the report.   Based on review of the October 2020 VA examination report and medical opinion, the examiner is requested to address the following:   (a.) Identify the Veteran’s current cervical spine disability(ies). (b.) If arthritis is found, the examiner should opine whether it at least as likely as not any arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.   (c.) Assuming that the standard is at least as likely as not, is it possible that the Veteran’s current cervical spine disability could be related to or caused by any in-service event, injury, or disease including flying T-38 and T-37 aircraft for 3000 hours at high g-forces and 5000 hours total wearing a helmet. See September 2012 VA Form 21-4138. (d.) The examiner must discuss the veteran’s lay statements regarding the history, chronicity, and continuity of symptomatology, to include the veteran’s report of his in-service injury.  S/he should outline that history in the report.   (e.) Are the Veteran’s assertions that his current cervical spine disability was incurred as a result of flying T-38 and T-37 aircraft for 3000 hours at high G-forces and 5000 hours total wearing a helmet, which caused severe strain on his neck, consistent with medical knowledge or implausible?   (f.) Do the Veteran’s reports about his symptoms or his in-service injury from flying T-38 and T-37 aircraft for 3000 hours at high G-forces and 5000 hours total wearing a helmet align with how the Veteran’s cervical spine disability is known to develop? (g.) Whether it is medically feasible that his current cervical spine disability was caused by his in-service injury from flying T-38 and T-37 aircraft for 3000 hours at high G-forces and 5000 hours total wearing a helmet? (h.) If the answer to any of the above questions is negative, state why not and on what basis this conclusion was made.   (i.) If any answer to any of the above questions is positive, state why and on what basis this conclusion was made.   4. Whether it is at least as likely as not (i.e.,50 percent probability or greater) that the Veteran’s cervical spine disability was caused by his any of his service-connected disabilities including his thoracolumbar spine and right should disabilities. 5. Whether it is at least as likely as not (i.e.,50 percent probability or greater) that the Veteran’s cervical spine disability underwent an incremental increase (aggravated), regardless of permanence, by any of his service-connected disabilities including his thoracolumbar spine and right should disabilities. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. Any opinion expressed by the VA examiner should be accompanied by a complete rationale.  If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized.    If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.    Left shoulder disability 6. Obtain an addendum medical opinion by a qualified clinician to provide an examination and medical opinion which addresses the nature and etiology of the Veteran’s left shoulder disability. The examiner must review the claims folder and acknowledge such review in his or her report. If the examiner decides an examination is necessary, he or she should perform or obtain any indicated studies or examinations. The examiner is asked to address the following: (a.) Identify all current and prior left shoulder diagnoses, to include degenerative changes of the left shoulder. (b.) If arthritis is found, the examiner should opine whether it at least as likely as not any arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.   (c.) Assuming that the standard is at least as likely as not, is it possible that the Veteran’s left shoulder disability could be related to or caused by any in-service event, injury, or disease including flying T-38 and T-37 aircraft for 3000 hours at high g-forces and 5000 hours total wearing a helmet. See September 2012 VA Form 21-4138. (d.) The examiner must discuss the veteran’s lay statements regarding the history, chronicity, and continuity of symptomatology, to include the veteran’s report of his in-service injury. S/he should outline that history in the report.   (e.) Are the Veteran’s assertions that his current left shoulder disability was incurred as a result of flying T-38 and T-37 aircraft for 3000 hours at high G-forces and 5000 hours total wearing a helmet, which caused severe strain on his neck, consistent with medical knowledge or implausible?   (f.) Do the Veteran’s reports about his symptoms or his in-service injury from flying T-38 and T-37 aircraft for 3000 hours at high G-forces and 5000 hours total wearing a helmet align with how left shoulder disability is known to develop? (g.) Whether it is medically feasible that his current left shoulder disability was caused by his in-service injury from flying T-38 and T-37 aircraft for 3000 hours at high G-forces and 5000 hours total wearing a helmet? (h.) If not, state why not and on what basis this conclusion was made.   (i.) If so, state why and on what basis this conclusion was made.   (j.) Opine whether it is at least as likely as not (i.e.,50 percent probability or greater) that the Veteran’s left shoulder disability was caused by his any of his service-connected disabilities including his thoracolumbar spine and right should disabilities. (k.) In so doing, the examiner is asked to review and address the Veteran’s statement asserting that he had to compensate with his right shoulder which caused damage to his left shoulder. See September 2012 VA Form 21-4138. (l.) Whether it is at least as likely as not (i.e.,50 percent probability or greater) that the Veteran’s left shoulder disability underwent an incremental increase (aggravated), regardless of permanence, by any of his service-connected disabilities including his thoracolumbar spine and right should disabilities. Any opinion expressed by the VA examiner should be accompanied by a complete rationale.  If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized.    (Continued on the next page)   If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. K. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, Associate Attorney 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.