Citation Nr: 21023243 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-12 014 DATE: April 20, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran had active service from June 1956 to May 1960. This claim was previously before the Board in October 2020, at which time the Board remanded it for additional development. Additional development is needed before the claim is decided on the merits. 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a cervical spine disability is remanded. The Veteran’s service treatment records show that in October 1959 the Veteran suffered a laceration to the head and chin when a hatch door of a personnel carrier hit him on the head. The lacerations were cleaned and sutured. Later, on a March 1960 medical history report, the Veteran wrote that he had not had arthritis or rheumatism, or a bone, joint, or other deformity. At the March 1960 separation examination, the spine and other musculoskeletal were normal. In February 1991 the Veteran wrote that since military service he had neck and back problems, with a gradual increase of neck pain and stiffness over the years. He did not realize why until May 1987 when he was struck in the head with a piece of a pipe at work. He was x-rayed, and an old injury was detected. The additional evidence added to the record since the March 1991 rating decision includes a March 2016 VA treatment note that includes the Veteran having back pain. Subsequent treatment records continue to include back pain. At May 2018 VA treatment the Veteran reported neck and back pain. In October 2018, the Veteran submitted a September 1991 Social Security decision which notes that he was treated in May 1987 and was diagnosed with a mild concussion and an old fracture of the C-5 vertebral body. X-rays of the cervical spine showed degenerative spondylosis and disc thinning. In August 2019, the Social Security Administration reported that the Veteran’s medical records had been destroyed. Furthermore, the hospital the Veteran was treated at in May 1987, which has been alternately referred to in the record as Health Sciences University Hospital and Osteopathic Hospital, has since closed. A December 2019 report that has been associated with the claims file states that the VA Regional Office performed research for contact information for the hospital and was unsuccessful. Therefore, it was concluded that the duty to assist regarding the Social Security records and Health Sciences University Hospital/Osteopathic Hospital records has been satisfied since the records are unavailable, and additional attempts to obtain the records would be futile. See 38 C.F.R. § 3.159(c). Private treatment records from August 2018 state that the Veteran presented to discuss chronic neck and back pain secondary to degenerative disc disease and previous lumbar surgery. The assessment was degenerative disc disease of the lumbar and cervical spines and cervical stenosis of the spinal canal. At November 2018 private treatment the Veteran reported waxing and waning right low back pain. A CT scan of the cervical spine from December 2018 private treatment showed degenerative disc disease of the cervical spine. At May 2019 VA treatment the Veteran reported that his neck had “tight, aching” stabbing when moving from left to right. The back had aching that was worse when standing for long periods. The Veteran wrote in June 2020 that he had back surgery in 1978 from a ruptured disc. The Veteran had an examination arranged through VA in November 2020 at which he was diagnosed with degenerative arthritis of the spine. He reported that he had a long history of lumbar pain and sought care in 1976. There was no specific mechanism of injury. It was noted that the Veteran underwent a lumbar discectomy and laminectomy in 1978 and that the condition had worsened over the last 18 months. The examiner opined that the degenerative arthritis of the spine was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. It was noted that the service treatment records are silent for lumbar complaints or a diagnosis. The Veteran stated that he had not sought medical care for back complaints until 1976, which was 16 years after service. There was no clear chronicity between any in-service event and the initiation of the lumbar complaints on record. Therefore, the examiner felt the claimed back disability was less likely than not incurred in or caused by the Veteran’s time in service. Regarding a cervical spine disability, the examiner opined that it was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. It was noted that the service treatment records are silent for neck complaints or a diagnosis. The Veteran said that imaging of his neck was negative after he struck his head on a hatch in October 1959. He said he had had neck pain since the accident but did not report it during service, including at the discharge examination. The examiner noted that the Veteran was in a workplace accident in 1987, when an old cervical fracture was identified. X-rays and a CT scan from December 2018 did not show an old fracture. It was noted that the only medical evidence was the 1987 x-ray and that the Veteran did not report pain in service or at discharge. The examiner wrote, “For a positive opinion to be rendered, the preponderance of the clinical evidence should suggest a clear history between the initial accident and today.” Probative opinion cannot be given to the November 2020 examiner’s opinions. Regarding the cervical spine, the examiner is incorrect that there must be a preponderance of the evidence suggesting a “clear history” between the initial accident and today. The correct standard is at least as likely as not. Furthermore, the examiner improperly based the opinions for the back and cervical spine on the lack of treatment in the years following service. Therefore, a new opinion must be obtained before the claim can be decided on the merits. VA treatment records to October 2020 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from October 2020 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain VA treatment records from October 2020 to the present. 2. Thereafter, obtain an addendum to the November 2020 examiner’s opinion regarding the etiology of the back and cervical spine disabilities. The Veteran’s claims folder should be provided to the reviewer prior to completion of the opinion. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that neck and/or back disabilities were incurred in service or within a year of service, or are otherwise related to service, to include when the Veteran was hit in the head by a hatch door in October 1959. The examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary, citing to specific evidence in the file. The examiner should consider that in May 1987 the Veteran was noted to have and an old fracture of the C-5 vertebral body. The lack of other treatment in the years following service should not be considered. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.