Citation Nr: 21023627 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-04 900 DATE: April 21, 2021 REMANDED Service connection for a cervical spine disability. Service connection for a lumbar spine disability. Service connection for sleep disturbances. REASONS FOR REMAND The Veteran served on active duty from February 1979 to October 1996. The case is on appeal from a January 2014 rating decision. In a February 2016 VA Form 9, the Veteran limited the appeal to the three issues identified herein. The Veteran requested a Board hearing on his February 2016 VA Form 9, but withdrew this request in July 2020. 1. Service connection for a cervical spine disability. The Board finds that remand is warranted to afford the Veteran a new VA examination, obtain new VA opinions and obtain outstanding treatment records. With respect to direct service connection, the Veteran was afforded a VA examination in October 2013 and a Neck (Cervical Spine) Conditions Disability Benefits Questionnaire (DBQ) was completed. Diagnoses were noted of cervical disc disease and cervical arthritis. The examiner provided a negative nexus opinion that “[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The provided rationale stated in full: There is no documentation is present in the [service treatment records (STRs)] of recurrent neck injury. There is one episode of a car accident note dated 29 Oct 1979: the note records neck as full range of motion (FROM) and [diagnosis] as “normal exam”, plan is “reassurance[.]” There is no documentation of a return visit for further neck issues. There was a solitary episode of neck pain documented Sep 22, 1993. The [V]eteran was treated with a muscle relaxer. There is no further documentation of treatment for this neck issue. NO return appt was noted in the STR. It has been 17 years since the [V]eteran was honorably discharged. If the [V]eteran had neck issues related to service, he should have medical records documenting diagnosis and treatment for his neck issues. No such documents were available for review. Review of the rationale indicates that the opinion may have been based on an inaccurate history when considering the Veteran’s lay statements. In this regard, the October 2013 Neck Conditions DBQ stated that the Veteran “had numerous occasions of re-injury to his neck while playing sports for the military teams,” that “[h]e does recall three more car accidents while on active duty” and that “[t]he [V]eteran reports 30 years of neck pain, daily, and constant 7/10, stabbing pain.” As such, the Board finds that the October 2013 VA opinion was not entirely sufficient and that remand is warranted for a new direct service connection opinion. In addition, the Board finds that an opinion as to secondary service connection is also warranted while on remand. The Veteran specifically raised this theory on his February 2016 VA Form 9, as he stated that “I claimed my neck as secondary to my service connected right shoulder condition.” The Board notes that the Veteran has not clearly explained how his cervical spine disability is secondary to his service-connected right shoulder disability of dislocation of the right shoulder with fracture of the clavicle. The Veteran, however, reported that he was a hospital corpsman in the military, which was supported by his STRs. See June 2014 Veteran Statement; see, e.g., August 1990 Report of Medical History STR (noting a usual occupation of Hospital Corpsman). This occupation suggests that the Veteran has some level of medical education, training and experience. As such, the Board finds that the requirements to obtain a VA opinion as to secondary service connection have been met. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, in light of the remand, outstanding VA treatment records should be obtained. Further, VA treatment records referenced copies of scanned private medical records that are not associated with the electronic claims file. Specifically, April and May 2013 VA records referenced “Consult Fee Physical Therapy Notes” from Peak Performance as being scanned and referenced accessing the reports “via VistA Imaging.” These records appear relevant to the cervical spine (and lumbar spine) claim, as an earlier March 2013 VA primary care provider note noted a plan of “[Physical Therapy] for shoulders, neck and back.” In addition, July and September 2015 VA records referenced notes being scanned from Johnston Pain Management from April 2015 to July 2015 and the July 2015 VA record referenced reviewing these records in VistA Imaging. The July 2015 VA record also noted a chief complaint of “[u]pper back and neck pain” and, as such, these records also appear relevant to the cervical spine (and lumbar spine) claim. In review, while on remand, any available outstanding private treatment records in VA’s possession from Peak Performance and Johnston Pain Management should be associated with the Veteran’s electronic claims file. The Veteran is also advised that he may submit any outstanding relevant private treatment records or complete a release for VA to obtain any such records. 2. Service connection for a lumbar spine disability. The Board finds that, in addition to being warranted to obtain the potentially relevant outstanding records previously discussed, that remand is also warranted to afford the Veteran a new VA examination and obtain new VA opinions. With respect to direct service connection, the Veteran was afforded a VA examination in October 2013 and a Back (Thoracolumbar Spine) Conditions DBQ was completed. Diagnoses were noted of lumbar degenerative disc disease and lumbar arthritis. The examiner provided a negative nexus opinion that “[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The provided rationale stated in full: The last recorded physical exam on 08 Jul 1996, documents, “recurrent back pain” marked “yes”. However, there are no treatment records of low back pain or treatment for low back pain in the 17 years of STR. The [V]eteran was seen for other medical issues throughout the STR, but not back pain. All other and earlier physical exams have “no” marked for recurrent back pain. The [V]eteran reports numerous sports encounters, in which his back was hurting, however, no medical treatment was sought for this issue. He reports that he continued to play in sports throughout his service career. Initially, the Board finds that the provided rationale did not fully articulate the reasoning for the negative opinion provided and sound reasoning to explain the negative opinion was also not included. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion…that contributes probative value to a medical opinion”). Review of the rationale also indicates that he opinion may have been based on an inaccurate history when considering the Veteran’s lay statements. In this regard, the October 2013 Back Conditions DBQ stated that the Veteran “reports numerous occasions of low back pain and injury,” that “he remembers an occasion of playing football in 1981…when he was hit in the left low back and was unable to continue playing” and that he “recalls another episode while playing football…of a collision with another player which resulted in his back pain. He was unable to continue playing for the remainder of the game.” As such, the Board finds that the October 2013 VA opinion was not entirely sufficient and that remand is warranted for a new direct service connection opinion. In addition, the Board finds that an opinion as to secondary service connection is also warranted while on remand. The Veteran specifically raised this theory on his February 2016 VA Form 9, as he stated that “I have arthritis in my right shoulder which led to arthritis in my neck, and then into my back” and that “I feel the medical opinion…should have addressed my…back as secondary to the right shoulder (via the neck).” Review of the Form 9 indicates that the Veteran raised the issue of secondary service connection between his lumbar spine disability and his service-connected right shoulder disability and his currently nonservice-connected cervical spine disability. Similar to the cervical spine claim, the Board notes that the Veteran has not clearly explained how his lumbar spine disability is secondary to his service-connected right shoulder disability. In light of the Veteran’s service as a hospital corpsman, however, the Board finds that the requirements to obtain a VA opinion as to secondary service connection have been met. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 79. 3. Service connection for sleep disturbances. The Board finds that remand is warranted to afford the Veteran a VA examination and obtain VA opinions. The Veteran has contended that he has sleep disturbances that are secondary to his service-connected right shoulder disability and his currently nonservice-connected cervical and lumbar spine disabilities. See September 2013 Veteran Statement (“Sleep disturbance is caused from pain from shoulder injury and moderate arthritis to neck, back”); June 2014 Veteran Statement (“I also suffer from difficulty sleeping as my neck, back and both shoulders hurt and go numb throughout the night”); February 2016 VA Form 9 (“I have arthritis in my right shoulder which led to arthritis in my neck, and then into my back. All of these cause sleep disturbances due to the pain and discomfort I have”). It is not currently clear whether the Veteran has a sleep disability for VA purposes. In this regard, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. The United States Court of Appeals for the Federal Circuit has stated that “‘disability’ in [38 U.S.C] § 1110 refers to the functional impairment of earning capacity.” See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). The United States Court of Appeals for Veterans Claims (Court) subsequently stated that “[t]he definition of ‘disability’ in section [38 U.S.C. §] 1110 includes any condition that results in ‘functional impairment of earning capacity.’” See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020). The Court additionally stated that “to establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity.” See Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). In this case, the Veteran was not afforded a VA examination and the competent evidence of record does not otherwise include a diagnosed sleep disability or address whether the Veteran has any functional impairment of earning capacity related to his claimed sleep disturbances. Overall, the Board finds that the requirements to obtain a VA opinion have been met and that remand is warranted to obtain such opinion that addresses (1) whether the Veteran has a sleep disability for VA purposes and (2) secondary service connection between a sleep disability and the service-connected right shoulder disability. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4);  McLendon, 20 Vet. App. at 79.. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records from October 2015. 2. Associate with the Veteran’s electronic claims file any available outstanding private treatment records in VA’s possession from Peak Performance and Johnston Pain Management. See April and May 2013 and July and September 2015 VA Treatment Records (referencing scanned records accessible in VistA Imaging). 3. Afford the Veteran a VA examination with respect to his cervical spine disability claim. The examiner must provide an opinion addressing the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any cervical spine disability had its onset during service, within one year of discharge from service, or is otherwise related to service. The examiner’s attention is invited to: i. A September 1993 STR, which noted a complaint of “[left] sided neck pain after playing basketball…[history] of…old football injuries” and noted an assessment of “pinched nerve/neck sprain.” ii. The October 2013 Neck Conditions DBQ, which stated that the Veteran “had numerous occasions of re-injury to his neck while playing sports for the military teams,” that “[h]e does recall three more car accidents while on active duty” and that “[t]he [V]eteran reports 30 years of neck pain, daily, and constant 7/10, stabbing pain.” iii. June 2014 Veteran Statement, where the Veteran stated “I have asked my provider as well as my physical therapist about cause of my arthritis. They state it was caused by my active duty service. I agree, I know this to be true.” The Veteran also stated that “[w]hile in the service I sustained impact hits to…neck area.” (b.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any cervical spine disability is due to or caused by the Veteran’s service-connected right shoulder disability. (c.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any cervical spine disability has been aggravated (i.e., increased in severity) by the Veteran’s service-connected right shoulder disability. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. 4. Afford the Veteran a VA examination with respect to his lumbar spine disability claim. The examiner must provide an opinion addressing the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any lumbar spine disability had its onset during service, within one year of discharge from service, or is otherwise related to service. The examiner’s attention is invited to: i. The July 1996 retirement Report of Medical History Form, which included the Veteran’s report of having recurrent back pain and a medical professional’s notation of recurrent lower back pain. ii. The October 2013 Back Conditions DBQ, which stated that the Veteran “reports numerous occasions of low back pain and injury,” that “he remembers an occasion of playing football in 1981…when he was hit in the left low back and was unable to continue playing” and that he “recalls another episode while playing football…of a collision with another player which resulted in his back pain. He was unable to continue playing for the remainder of the game.” iii. June 2014 Veteran Statement, where the Veteran stated “I have asked my provider as well as my physical therapist about cause of my arthritis. They state it was caused by my active duty service. I agree, I know this to be true.” (b.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any lumbar spine disability is due to or caused by the Veteran’s service-connected right shoulder disability. (c.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any lumbar spine disability has been aggravated (i.e., increased in severity) by the Veteran’s service-connected right shoulder disability. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. 5. Afford the Veteran a VA examination with respect to his sleep disturbances claim. The examiner must provide an opinion addressing the following: (a.) Whether the Veteran has a diagnosed sleep disability. (b.) If a current diagnosed sleep disability does not exist, whether the Veteran has any functional impairment of earning capacity related to his claimed sleep disturbances. (c.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any sleep disability or sleep disturbances are due to or caused by the Veteran’s service-connected right shoulder disability. (d.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any sleep disability or sleep disturbances have been aggravated (i.e., increased in severity) by the Veteran’s service-connected right shoulder disability. The examiner’s attention is invited to: (Continued on the next page)   The Veteran contention that he has sleep disturbances that are secondary to his service-connected right shoulder disability. See September 2013 Veteran Statement (“Sleep disturbance is caused from pain from shoulder injury”); June 2014 Veteran Statement (“I also suffer from difficulty sleeping as…both shoulders hurt and go numb throughout the night”); February 2016 VA Form 9 (“I have arthritis in my right shoulder which led to arthritis in my neck, and then into my back. All of these cause sleep disturbances due to the pain and discomfort I have”). For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.