Citation Nr: 21022546 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 19-04 223 DATE: April 16, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran has active service from August 1965 to August 1968. This case is before the Board of Veterans’ Appeals (Board) from a February 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in August 2019. As discussed below, another remand is required before the matter can be adjudicated. Entitlement to service connection for a cervical spine disability is remanded. The Veteran claims that he had a cervical spine disability prior to service which was aggravated during basic training. The Veteran’s August 1965 enlistment examination did not note a cervical spine disability. Therefore, although the Veteran has reported a pre-service injury during the course of his appeal, the Veteran is presumed to be sound upon entrance into active duty as to a cervical spine disability. When the Veteran is presumed sound at entrance into active duty, the burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not increase or that any increase was due to the natural progress of the disease. Id. The Veteran is currently diagnosed with cervical spine arthritis. See December 2019 VA examination. A November 2017 private Disability Benefits Questionnaire indicates that the Veteran is diagnosed with mechanical cervical pain syndrome, cervical spondylosis, degenerative disc disease, and radiculopathy. In a July 2020 statement, the Veteran stated that he had a pre-service cervical spine strain in 1964 which was “aggravated or re-injured” during basic training in 1965. He also reported in-service treatment at Camp Drum in 1966 and on two occasions at Fort Dix in 1968 for headaches, which he believes are related to his neck disability. In the August 2019 remand, the RO was directed to obtain an opinion from a VA examiner as to whether the Veteran’s cervical spine disability clearly and unmistakably preexisted service and, if so, whether the Veteran’s disability was clearly and unmistakably not aggravated beyond its natural progression during service. If the examiner found that the disability either did not clearly and unmistakably preexist service or was not clearly and unmistakably aggravated by service, the examiner was asked to opine whether the Veteran’s cervical spine disability was at least as likely as not related to his reported in-service cervical spine soreness complaint. The RO obtained a medical opinion in December 2019. The Board finds that a remand is required as the December 2019 medical opinion is inadequate because the examiner did not issue an opinion as to whether the Veteran’s cervical spine disability clearly and unmistakably existed before service, and, if so, whether it was clearly and unmistakably not aggravated beyond its natural progression during service. While the examiner did briefly discuss the Veteran’s reported pre-service injury, the examiner did not issue an opinion which complied with the August 2019 Board remand. Additionally, as the Veteran has a diagnosis for arthritis, which is a chronic disability enumerated under 38 C.F.R. § 3.309(a), the examiner should opine whether the Veteran’s arthritis either began during service, manifested within one year of service, or was noted during service with continuity of the same symptomatology since service. Finally, the Board notes that while the Veteran has repeatedly asserted that he believes he has headaches related to a neck disability, there is no pending appeal for a claim for entitlement to service connection for headaches and the Veteran is not service connected for a headache disability. The Veteran is encouraged to file a claim for service connection for a headache disability if he believes that he has a headache disability related to his service. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his claimed cervical spine disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: a) Did any currently diagnosed cervical spine disability clearly and unmistakably (undebatable) preexist the Veteran’s service? b) If the examiner finds that any currently diagnosed cervical spine disability did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? c) If the examiner finds that any currently diagnosed cervical spine disability either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to service, including the Veteran’s participation in the alligator crawl or crawling in the infiltration course during basic training, or the Veteran’s in-service reports of headaches or neck pain? d) If the examiner finds that any currently diagnosed cervical spine arthritis either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it at least as likely as not that the cervical spine arthritis either: (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? The examiner must address the Veteran’s reported in-service headache and neck pain. (Continued on the next page)   The examiner must provide a thorough rationale to support each opinion. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, Associate 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.