Citation Nr: 21023481 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-37 955 DATE: April 20, 2021 REMANDED Entitlement to service connection for a neck condition is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1984 to June 2005. This matter comes before the Board of Veterans’ Appeals (“Board”) from an August 2012 rating decision of the Department of Veterans Affairs (“VA”) Regional Office (“RO”). The Board remanded this matter in April 2019, along with the issue of “entitlement to a total disability rating based on individual unemployability (“TDIU”) due to service-connected disabilities” for further development and RO’s initial consideration of additional evidence submitted by the Veteran. Following the Board’s remand, the RO granted entitlement to TDIU in full, hence the appeal of TDIU is no longer before the Board. Regarding the issue of entitlement to service connection for a neck condition, the RO afforded the Veteran a VA medical examination and obtained a medical opinion in March 2021 on the nature and etiology of his neck condition. However, the Board finds the opinion inadequate for deciding the issue on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Regrettably, the Board finds that further remand is necessary in this matter. Entitlement to service connection for a neck condition is remanded. The Veteran has asserted that his neck condition started after a motor vehicle accident (“MVA”) occurred in April 1991, during his active service duty in Germany. In the October 2018 appellate brief, the Veteran’s representative asserted that the Veteran’s service-connected disabilities of the leg and knee has aggravated his neck condition. The Veteran was afforded a VA examination and a medical opinion was obtained in March 2021 on the nature and etiology of his neck condition. The examiner diagnosed the Veteran with cervical facet osteoarthritis/hypertrophy with neuroforaminal spondylosis and opined that the Veteran’s neck condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, including the MVA that occurred in April 1991. The examiner stated that the Veteran’s service treatment records (“STRs”), including enlistment and separation examinations do not note any neck pain from MVA. However, the examiner further stated that STRs noted the Veteran’s neck pain condition resolving and improving in follow-up. The Veteran’s neck pain reappears in medical records in 2010, some 6 years following military separation. Based on review of Veteran’s history, physical examination, diagnostic findings, and available records, the examiner concluded that a direct service connection for cervical facet osteoarthritis/hypertrophy with neuroforaminal spondylosis has not been established due to lack of documented symptoms in medical reports, or relevant evidence in the claims file. The Board finds the above March 2021 opinion inadequate for deciding the issue on appeal. Initially, the examiner noted no complaints of neck pain during service except the notation of improvement of neck condition after the MVA; and also, did not address the medical findings noted after the MVA in Germany. Whereas, the Board finds that the April 1991 treatment record from US Army Hospital in Berlin, Germany, noted C5-C7 luxation and hematoma with severe neck pain. Also, the examiner noted the indication of neck pain improvement after MVA in STRs and stated that the pain did not reappear until 2010. However, there is subsequent notation of neck pain in September 2004 treatment record during service, and in October and December 2005 VA treatment records within a year of separation from the military service. Furthermore, the examiner based the negative nexus opinion on the lack of treatment records, whereas the lack of contemporaneous records does not preclude granting of service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim). Lastly, the Board notes that the service connection has already been granted for lumbar strain, bilateral shoulder and knee conditions, and the veteran has asserted the right of entitlement based on secondary service connection. However, no medical opinion has been obtained on secondary service connection. Consequently, a remand is warranted to obtain an addendum medical opinion on the nature and etiology of a neck condition based on both direct and secondary service connection theories of entitlement. The matter is REMANDED for the following action: 1. Forward the claims file and a copy of this remand to the examiner who rendered the March 2021 medical opinion, or to an appropriate clinician if the March 2021 examiner is unavailable, to obtain an addendum opinion on the nature and etiology of the Veteran’s neck condition. In-person examination of the Veteran is left to the discretion of the clinician providing the addendum opinion. If the clinician deems such examination is necessary, then an examination should be scheduled. 2. After reviewing the claims file, the examiner should address the following: (a) Provide an opinion as to whether it is at least as likely as not that the Veteran’s neck condition had its onset during his period of active service, or related to an in-service injury, event, or disease, including the April 1991 MVA. (b) Provide an opinion as to whether the Veteran’s neck condition is at least as likely as not (i) proximately due to or (ii) aggravated beyond its natural progression by his service-connected disabilities, including lumbar strain, bilateral shoulder, and bilateral knee conditions. In providing the above opinions, the examiner is advised to address the clinical findings of neck condition after the April 1991 in-service MVA; and the Veteran’s complaints and notation of neck pain during and after service, as noted in documents associated with the claims file, with entries dated: (i) 02/06/2014, titled “STR – Medical,” page number 28, which contains the notation of medical findings by US Army Hospital in Berlin, Germany after the April 1991 MVA; (ii) 02/06/2014, titled “STR – Medical,” page number 4, which includes notation of neck pain in the September 2004 treatment record; (iii) 08/28/2012, titled “CAPRI,” page number 54 and 75, which contain notation of neck pain in October and December 2005 VA treatment records. A complete rationale for the opinions rendered must be provided. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.