Citation Nr: 21021402 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-08 073 DATE: April 12, 2021 REMANDED Entitlement to service connection for degenerative joint disease of the cervical spine with radiculopathy of the right upper extremity. Entitlement to service connection for degenerative joint disease of the lumbar spine with radiculopathy of the right lower extremity. REASONS FOR REMAND The Veteran served on active duty from July 1987 to December 1990. This appeal is before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In September 2018 the Board reopened the Veteran’s claim of service connection for a lumbar disability and remanded both service connection claims with instruction to obtain a VA medical opinion. An opinion was provided in December 2018. In May 2019 the Board found the opinion inadequate and remanded with instruction to obtain current records and to provide VA examinations with adequate opinions. The appropriate records were obtained, and the Veteran underwent VA examinations in January 2020. 1. Entitlement to service connection for degenerative joint disease of the cervical spine with radiculopathy of the right upper extremity 2. Entitlement to service connection for degenerative joint disease of the lumbar spine with radiculopathy of the right lower extremity The Veteran claims service connection for disabilities of his lumbar and cervical spine. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records reflect that in March 1988 the Veteran reported neck and back pain for five days after being placed in a headlock while wrestling. He was diagnosed with a strained back. The following week he reported that he had felt better but then reinjured himself during physical training. He was diagnosed with a recurrence of his back strain. In February 1989, he reported ringing and dull, intermittent pain to his right ear radiating to his neck two days after swimming in the ocean. He was diagnosed with impacted wax and was cleaned and flushed. In February 1990 the Veteran fell from his motorcycle and reported pain in his right hip, leg, and wrist. X-rays were within normal limits and neither back nor neck pain was reported. No abnormality was noted at his December 1990 separation examination, and in the accompanying report of medical history he explicitly denied having ever experienced recurrent back pain. VA treatment records reflect that in January 2007 the Veteran reported a low back pain flare-up. He reported that he had been seeing a private physician. Private treatment records reflect that in January 2007 an MRI of the cervical spine showed degenerative changes with narrowing of the thecal sac and neural foramen at multiple levels. In March 2007, his orthopedist stated that his symptoms of lumbar radiculopathy were a result of his March 2006 motor vehicle accident and related to lumbar disc herniation at L5-S1. The orthopedist further noted cervical symptoms, seemingly related to the March 2006 accident, but with evidence of preexisting degenerative changes of the cervical spine that were likely exacerbated by the March 2006 accident. In April 2007 his neurosurgeon noted that the Veteran “without prior problems” was involved in a motor vehicle accident. The neurosurgeon stated the impression that he had a worsening posttraumatic right lumbar radiculopathy. An MRI showed mild multilevel spondylitic disc disease most severe at the L5-S1 level, a mild diffuse disc bulge with superimposed moderate to large right lateral disc herniation resulting in moderate to severe right neuroforaminal narrowing, and mild effacement of the anterior thecal sac right of the midline. In May 2007 he was treated for sharp, aching pain radiating down his legs. He reported that he experienced this pain ever since a March 2006 motor vehicle accident. He underwent lumbar decompression surgery. In May 2008 he reported worsening pain radiating into his shoulder and low back. In August 2008 he reported right neck pain that radiated to the right shoulder and low back. He was diagnosed with cervical spondylosis and underwent a lumbar MRI. Based on the MRI, in September 2008 he was diagnosed with lumbar radiculopathy and lumbar spondylosis. He underwent injections and continued regular follow-up treatment for lumbar and cervical spondylosis with radiculopathy. In his original June 2011 service connection claim, the Veteran reported that his back injury occurred in a March 2006 motor vehicle accident, after which he required surgery. In a December 2011 statement, the Veteran described the March 2006 motor vehicle accident. He stated that his car was totaled. He reported that he refused medical treatment at the scene but presented to the emergency room two hours later with severe neck and lower back pain. He reported that he ended up with two severely herniated discs, one in the cervical spine and one in the lumbar spine. He reported that he spent over a year being treated by a chiropractor, a physical therapist, and a pain management specialist. He subsequently underwent surgery and still received occasional nerve blocks and prescription pain medication. VA treatment records reflect that in February 2012 the Veteran reported pain in his low back and cervical spine. He reported that his pain was the result of a 2006 motor vehicle accident and subsequent surgery. The Veteran underwent a VA examination in February 2015. He reported that he did a lot of heavy lifting in service and felt that his low back pain was related to that. He reported that his back injury was aggravated by his March 2006 motor vehicle accident. He also reported that his neck pain began in service. He was diagnosed with degenerative joint disease of the lumbar spine with right lower extremity radiculopathy and with degenerative joint disease of the cervical spine with right upper extremity radiculopathy. The examiner opined that these disabilities were less likely than not related to service. This opinion was based on the rationale that medical literature shows that back strains like that the Veteran was diagnosed with in April 1988 are self-limiting injuries, and he was able to complete his next three years of service without back or neck problems, aside from the episode of ear infection after swimming that radiated to his neck. The examiner explained that there was no indication that this reflected an injury to his neck. The examiner further explained that after discharge, the Veteran worked as a mechanic, which required lifting and bending. The examiner stated that it was not uncommon to see degenerative changes in the cervical spine in mechanics. Finally, most documentation of his pain began after his March 2006 motor vehicle accident. The examiner found no evidence to support that the back or neck disabilities were related to service. In his May 2015 notice of disagreement, the Veteran reported that in service he was treated for a neck injury sustained while surfing, and then again for a motorcycle accident for which he also injured his back. He stated that he experienced neck pain from a herniated disc throughout the rest of his service. He stated that his injuries were further exacerbated by the rigors and heavy lifting of serving in an artillery unit and wearing a Kevlar helmet. In his January 2016 substantive appeal, the Veteran reported that he injured his cervical spine while swimming in service. He stated that he almost broke his neck and had to wear a neck brace as documented in his record. He disputed the characterization of his disabilities as “degenerative joint disease” instead of herniated discs. He stated that he injured his lumbar spine in service due to a motorcycle accident. In December 2018, a VA examiner opined that the Veteran’s disabilities were less likely than not related to service. This opinion was based on the rationale that there were no post-service records of back or neck problems until 2006 when he was reporting pain after his car accident. The examiner further referred to the Veteran’s December 2011 statement attributing his injuries to the March 2006 motor vehicle accident. In an April 2019 statement, the Veteran reported that prior to his March 2006 motor vehicle accident he already had 9 herniated discs in his lumbar spine and a severely herniated disc in his cervical spine. He reported that the accident exacerbated the condition in two of the discs in his lumbar spine, requiring surgery. He stated that he had been treated for back pain prior to the March 2006 accident and since his discharge from service. He reported auto insurance refused to cover treatment of his cervical spine disability after the accident based on a finding that it was a preexisting injury. He stated that his MRIs after the accident showed preexisting injuries to his cervical and lumbar spine. The Veteran underwent another VA examination in January 2020. He reported that he had neck pain and back pain in the military. He reported that he had MRIs in various places and was told that he had herniated discs. He reported that his motor vehicle accident exacerbated the pain. He was diagnosed with degenerative arthritis of the lumbar spine and cervical spine. The examiner opined that the disabilities were less likely than not related to service. This opinion was based on the rationale that his disabilities were degenerative, the result of chronic wear and tear, a genetic predisposition, and the loss of fluid in the disc spaces. Additionally, the disabilities would likely be the result of the 2006 motor vehicle accident. The Board finds that an additional remand is unfortunately necessary before the Veteran’s appeal can be adjudicated. Specifically, remand is required to comply with the instructions of the Board’s prior May 2019 remand and to obtain relevant records from the Social Security Administration (SSA). In May 2019 the Board remanded with instruction to provide examinations in which the examiner explicitly addressed the Veteran’s claims that his neck and back disabilities were the result of heavy lifting performed as a field artillery cannoneer and wearing Kevlar helmet. The examiner was to consider and discuss the back and neck pain documented in March and April 1988 service treatment records, the Veteran’s assertion that he injured his neck surfing or swimming in service, and his assertion that he injured his back and neck in his February 1990 motorcycle accident. Finally, the examiner was to address the March 2007 MRI finding that there was evidence of preexisting degenerative changes of the cervical spine which were exacerbated by the March 2006 motor vehicle accident. The January 2020 VA examiner’s opinion did not comply with any of these instructions. The Veteran is entitled to an additional remand to ensure that the instructions of the May 2019 are complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the record contains multiple statements by the Veteran reporting that he has been deemed disabled by the SSA. In his prior December 2011 claim, he reported that he was deemed disabled by the SSA in 2008. At his January 2020 VA examination, he reported that he was currently on Social Security Disability due to his back. There is no indication in the record that VA took the necessary steps to attempt to obtain any relevant records from SSA. When VA has actual notice of the existence of relevant SSA records, the duty to assist includes requesting those records from the SSA. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record 2. Obtain and associate with the claims file any records in the possession of the Social Security Administration pertinent to the Veteran’s award of disability benefits. Make a notation in the claims file of all attempts to obtain these records and all responses received. 3. Obtain an addendum opinion to the January 2020 VA examination report from a qualified VA examiner. A new examination may be ordered if the examiner deems it necessary. The examiner should offer opinions as to whether it is at least as likely as not (i.e. 50 percent probability or more) that the Veteran’s lumbar and cervical spine disabilities are related to service. In so doing, the examiner must explicitly discuss: (a.) the Veteran’s claims that his neck and back disabilities were the result of heavy lifting performed as a field artillery cannoneer and wearing Kevlar helmet; (b.) the Veteran’s back and neck pain documented in his March and April 1988 service treatment records; (c.) the Veteran’s assertion that he injured his neck surfing or swimming in service in February 1989; (d.) the Veteran’s assertion that he injured his back and neck in his February 1990 motorcycle accident; and (e.) the March 2007 MRI finding that there was evidence of preexisting degenerative changes of the cervical spine which were exacerbated by the March 2006 motor vehicle accident. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, return the appeal to the Board. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.