Citation Nr: 21021830 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 12-33 180 DATE: April 14, 2021 ORDER Entitlement to service connection for neck disability is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of cervical spine surgery is remanded. Entitlement to service connection for right shoulder disability is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the neck disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for neck disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1959 to November 1962 and from December 1962 to February 1966. He died in February 2016 while the claims on appeal were pending, and his widow has been substituted as the Appellant. The claims regarding entitlement to compensation under 38 U.S.C. § 1151 for residuals of cervical spine surgery and service connection for right shoulder disability are on appeal from an October 2010 rating decision. The Veteran filed a Notice of Disagreement (NOD) in March 2011, which resulted in a September 2012 Statement of the Case (SOC). The Veteran subsequently filed a substantive appeal in November 2012. As to the claim for service connection for neck disability, the Board recognizes that the Agency of Original Jurisdiction (AOJ) did not explicitly issue a rating decision regarding this claim. However, the AOJ took measures to develop the claim. According to his NOD, the Veteran was under the impression that his claim for service connection for neck disability due to a 1962 motor vehicle accident had been implicitly denied in the October 2010 rating decision. The AOJ subsequently adjudicated the claim the September 2012 SOC, confirming that it has been implicitly denied in the October 2010 rating decision. Therefore, when the Veteran appealed all issues in the SOC, he also appealed this issue. The AOJ readjudicated the issue in its May 2020 Supplemental SOC (SSOC). Under these circumstances, the Board of Veterans’ Appeals (Board) finds that it has jurisdiction over this issue. 1. Entitlement to service connection for neck disability is denied. The Appellant is seeking service connection for neck disability. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran’s VA treatment records reflect that he had cervical spondylosis. Therefore, the first element of a service connection claim is established. In his NOD, the Veteran reported that he injured his neck in a car accident that occurred in 1962 while he was in the military. The Veteran explained that the vehicle he was in was struck by another car and he had severe neck pain following the accident. He was competent to report a car accident he experienced and the pain he felt afterwards. The Board does not have a reason to doubt his report of an accident. Thus, resolving reasonable doubt in the Appellant’s favor, the Board finds that the second element of a service connection claim is satisfied. However, the preponderance of the evidence weighs against finding that the Veteran’s neck disability began during service or is otherwise related to an in-service injury, particularly the reported car accident from 1962. To that end, the Veteran did not contend nor does his service treatment records reflect that he sought treatment for neck pain following the 1962 car accident. Notably, in 1962, the Veteran sought treatment for other conditions, such as laceration of the right eye or contusion of right big toe after a fight, and for back pain. Moreover, neck injury or neck pain was not reported during a September 1962 evaluation. In general, there is no treatment for neck pain or neck injury documented throughout the Veteran’s service treatment records. Considering the Veteran sought treatment for numerous other problems, the lack of treatment records for neck pain or neck disability suggests that any neck pain he may have experienced after the accident resolved without treatment. The Board recognizes that the Veteran believed that his neck disability was related to the accident in service. While the Veteran was competent to report having experienced symptoms of neck pain after the accident, he was not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of cervical spondylosis that was diagnosed decades after his separation from the military. The issue is medically complex, as it requires knowledge and medical training that the Veteran was not shown to have had. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board acknowledges that the Veteran was not provided a VA examination specifically regarding his service connection claim for neck disability. For service connection claims, VA is obliged to provide examination or obtain a medical opinion in a claim when the record indicates that the disability may be associated with active service. 38 U.S.C.§ 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, the duty to provide an examination is not limitless. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010). The McLendon threshold elements must be satisfied before VA is obliged to provide an examination or opinion. Id.; McLendon, supra. A conclusory generalized lay statement that a service event or illness caused the claimant’s current condition is insufficient to establish medical etiology or nexus or to require an examination under McLendon. Waters, 601 F.3d at 1278-79. Moreover, at a September 2010 VA examination, the Veteran reported an onset of progressively worsening neck pain over the last 20 years, placing the onset around 1990 and not 1962. Here, aside from the Veteran’s lay assertions, the evidence does not in any way indicate that his neck disability was directly related to his military service. Therefore, the McLendon threshold has not been satisfied and VA was not required to provide a VA examination or nexus opinion. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved in Appellant’s favor, and this claim must be denied. 38 C.F.R. § 3.102 ; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). REASONS FOR REMAND 2. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of cervical spine surgery is remanded. The contention is that the Veteran’s cervical surgeries from September and October 2008 caused paralysis. A veteran disabled because of a VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability was service connected. An additional disability is a qualifying disability if: (1) it was not the result of the veteran’s willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151 (a). Here, the AOJ obtained a medical opinion in September 2010, where the examiner noted that the Veteran had cervical myelopathy that worsened, and he became quadriplegic. The examiner opined that the Veteran’s partial left leg paralysis and total right leg paralysis were not caused by the surgeries performed in September and October 2008. The examiner’s opinion does not apply the appropriate legal standard (less likely than not). Furthermore, the examiner does not offer a complete rationale. The examiner merely states that the Veteran’s myelopathy, which existed prior to surgery “worsened and the Veteran became a quadriplegic.” Moreover, the Board concludes that the informed consent forms signed by the Veteran prior to his September 2008 surgical procedure must be obtained to determine the complications he was warned of prior to undergoing that surgery. As it stands, the claims file contains insufficient medical evidence to resolve the Appellant’s claim under 38 U.S.C. § 1151. 3. Entitlement to service connection for right shoulder disability is remanded. The AOJ scheduled the Veteran for VA examination regarding his right shoulder disability, but he was unable to attend because he was bedridden. The AOJ did not attempt to obtain an opinion without an examination. Review of the Veteran’s service treatment records reflect that he was diagnosed with right shoulder bursitis in February 1965. He continued to report bilateral shoulder blade pain in October 1965. The Board finds that an opinion is necessary before the claim can be adjudicated. The matters are REMANDED for the following action: 1. Take the necessary steps to obtain a copy of any informed consent the Veteran signed prior to his September 2008 surgery. 2. Thereafter, forward the claims file to an appropriate VA examiner to obtain a medical opinion. The examiner is asked to review all relevant evidence in the claims file. The examiner should then address the following: (a.) Was it at least as likely as not (50 percent probability or greater) that the Veteran's paralysis was proximately caused by the September and/or October 2008 surgeries? (b) If yes, was the Veteran’s paralysis at least as likely as not (50 percent probability or greater) caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in the surgery? (c) Was the Veteran's paralysis an event not reasonably foreseeable by the healthcare provider? The examiner is requested to provide complete rationales for any opinion expressed. If an opinion cannot be provided without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made 3. Forward the claims file to an appropriate VA clinician to obtain a medical opinion regarding the claimed right shoulder disability. After reviewing the claims file in its entirety, the examiner should answer the following question:  Was the Veteran’s right shoulder disability at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease?  When rendering this opinion, the examiner must consider and discuss the diagnosis of right shoulder bursitis in February 1965 and report of right shoulder pain October 1965, documented in the Veteran’s service treatment records.  The examiner is asked to provide a complete explanation for all opinions rendered, citing to the medical record when necessary to support the conclusion reached. If an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Solomon 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. § 20.130