Citation Nr: 21023185 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-00 225 DATE: April 20, 2021 REMANDED Entitlement to service connection for cervical spine disorder, to include as secondary to a service connected left knee disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disabilities is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1978 to October 1979 and from January 1991 to April 1991. These matters are on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters previously came before the Board in July 2018 and August 2020 whereupon they were remanded to allow for additional development to include obtaining adequate addendum medical opinions. Relevant to the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, such was originally adjudicated by the RO as entitlement to service connection for an adjustment disorder. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court’s decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include major depression and generalized anxiety. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). 1. Entitlement to service connection for cervical spine disorder with left knee residuals is remanded. The Veteran contends that his cervical spine disorder is either a direct result of his military service or alternatively due to service-connected left knee degenerative joint disease. In August 2020, the Board remanded the instant matter to obtain an etiology opinion on a secondary basis. Specifically, the Board instructed that a VA examiner provide an opinion as to whether the Veteran’s cervical spine disorder was proximately due to, the result of, or aggravated by his service-connected left knee disability. Such an opinion was obtained in December 2020. The VA examiner opined that the Veteran’s cervical spine disorder was less likely than not aggravated beyond its natural progression by the left knee disorder as cervical degenerative joint and disc disease will affect up to two-thirds of the population in their lifetime and that there may be a genetic component that predisposes some people to more rapid wear. The examiner noted that injury may also accelerate and sometimes cause the development of the degenerative changes and that nowhere in the medical literature or in the Veteran’s history is there any connection or aggravation made between the Veteran’s cervical degeneration and left knee disability. The examiner further opined that there was not a logical medical reason for possible aggravation of a cervical spine degeneration by a separate distinct joint condition such as a left knee condition. An opinion as to whether the Veteran’s cervical spine disorder was proximately due to or the result of his service-connected left knee disability was not provided. This opinion did not substantially comply with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, another remand to obtain an addendum opinion is necessary. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disabilities is remanded. With regard to the issue of service connection for an acquired psychiatric disorder, the medical evidence of record raises the question of whether the Veteran's disorder is the result of multiple medical conditions and/or chronic pain resulting from those conditions, to include his lumbar and cervical spine disabilities. An April 2019 VA examiner appeared to relate the Veteran's depression to his back condition, as the examiner stated that the medical records clearly indicate that the Veteran's back was the primary issue and that the Veteran was noted to have lost his job. As the decision on the issues of service connection for cervical spine and lumbar spine disorders, could significantly impact a decision on the issue of service connection for an acquired psychiatric disorder, the issues are inextricably intertwined. Thus, a remand of the claim is required. 3. Entitlement to service connection for lumbar spine disorder is remanded. The Veteran contends that his lumbar spine disorder is the result of his service. Regrettably, for the reason outlined below, the Board finds that further delay in adjudicating this matter is necessary as another remand is warranted. In the Veteran’s VA Form 9, received March 2020, the Veteran’s representative requested a Decision Review Officer (DRO) hearing on this issue. The Board notes that a DRO hearing has not yet been provided to the Veteran. The record also does not show any correspondence from the Veteran seeking to cancel the hearing. As such, the Board finds it proper to remand this matter to allow for RO to schedule the Veteran for a DRO hearing, which the Board is unable to schedule directly. See 38 C.F.R. § 20.700(a). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion as to the Veteran’s claimed cervical spine disorder. The examiner should review the claims file and provide an addendum opinion. The need for further physical examination is left to the discretion of the examiner. The examiner should answer the following question: Is at least as likely as not (50 percent or better probability) that the diagnosed cervical spine disorder was proximately due to or a result of his service connected left knee degenerative joint disease? A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. (Continued on the next page)   3. Schedule the Veteran for a DRO hearing in connection with the claim of entitlement to service connection for a lumbar spine disorder. The Veteran and his representative should be notified of the date, time, and location of this hearing. A copy of that notification letter should also be placed in the claims file. Any attempts to accommodate the Veteran’s hearing request should be documented in the record. 4. Thereafter, and after any other development raised by the record is completed, to include obtaining an addendum opinion regarding the claim for an acquired psychiatric disorder if necessary, the claims on appeal must be readjudicated. If the any benefit sought remains denied, the case should be returned to the Board after compliance with appellate procedures. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kashif I. Ali, 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.