Citation Nr: 21023976 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-61 624 DATE: April 21, 2021 ISSUE Entitlement to service connection for a cervical spine disability. REMANDED Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1969 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) in a videoconference hearing in September 2019. A transcript of that hearing is of record. The Board notes that this issue was previously denied by the Board in a Decision from October 2019. The Veteran appealed that Decision to the United States Court of Appeals for Veterans Claims (CAVC). In June 2020, CAVC issued a Joint Motion for Partial Remand (JMR), which vacated the Board’s October 2019 decision denying entitlement to service connection for a cervical spine disability. The issue then returned to the Board in November 2020, and it was remanded for additional development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Having said that, the Board finds that additional evidentiary development is again required before the claim on appeal is adjudicated. Entitlement to service connection for a cervical spine disability is remanded. The Veteran has claimed that his cervical spine disability is related to his active duty service. Specifically, he claims that while in service he carried “hundreds of pounds of equipment” on his back and that he was treated for a neck injury while in service. See September 2019 Board hearing. The Board notes that the Veteran is competent to report his symptoms and observations. Barr v. Nicholson, 21 Vet. App. 303 (2007). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service treatment records confirm that the Veteran was treated for a “stiff neck” in May 1971. Since separating from service however, the Veteran was seen on several occasions for neck pain. A private treatment record from Kaiser Permanente [KP] in October 1980 notes that the Veteran had “stiff neck for the last 2 days – woke up with it.” A U.S Department of Labor physicians report from Mare Island in August 1981 notes “sudden back pain after arising from reclining chair.” A KP treatment note from December 1981 notes a “stiff neck [for] 3 days,” and a later KP note from November 1982 notes “recurring episodes of sharp pain in mid back.” A KP treatment note from May 1983 also notes a “stiff neck 2 days.” Further private medical records from January 1985 contain complaints of neck pain. The Veteran also reported neck pain in April 1985 and a medical note reads “possible carpal tunnel.” Private medical records also reveal complaints of neck pain in June, September, and October of 1985, and October and December of 1987. Another private treatment record from January 1988 reveals stiffness in the shoulders and upper back and notes that the Veteran worked as an electrician and did a lot of lifting, reaching, and overhead work. The Veteran also complained of neck pain in July 1989, and an August 1989 medical record describes “cervical nerve-root irritation.” A May 2006 private treatment record noted complaints of left neck pain for seven days but does not note a precipitating event. In July 2006, the Veteran was diagnosed with cervical spondylosis including bilateral foraminal narrowing in the mid-cervical spine. See July 2006 private treatment record. Thereafter, private medical records contain additional notes of treatment for a neck strain and cervical spondylitic spondylosis. Private treatment records dated September 2011 revealed “congenital spinal stenosis made worse by multi-level degenerative spondylosis.” In order to determine the nature and etiology of his claimed cervical spine disability, the Veteran was afforded a VA examination in March 2013. The March 2013 VA examiner confirmed a diagnosis of a neck strain and “cervical spondylitic myelopathy”. The examiner noted the Veteran’s treatment for a stiff neck in May 1971, after which muscle relaxers and bed rest without a pillow were prescribed. The VA examiner noted that the Veteran’s May 1971 separation examination and subsequent May 1973 entrance examination for the Army National Guard were normal. The Veteran reported that after his military career he worked as an electrician from 1980 to 1992 and that he had to go up and down ladders carrying heavy tools on his shoulders and that he worked in tight confined spaces. The Veteran also reported to the VA examiner that he was employed as a security guard and police officer since then. The VA examiner wrote that the record indicated possible carpal tunnel syndrome in September 1999 but found no evidence of cervical myelopathy in that September 1999 record. The Veteran reported intermittent symptoms of pain in the neck radiating into his arms. The VA examiner noted the October 2011 letter from the private examiner. The Veteran reported to the VA examiner that as a police officer, he wore a 5 lbs. vest and carried a gun, and that his symptoms prevented him from completing his work duties from 3 to 4 days a month. After a review of the Veteran’s entire claims file, the VA examiner opined that the Veteran’s current cervical spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The VA examiner reasoned that there was only one report during service for a stiff neck and no mention of any neck condition at the Veteran’s second enlistment examination for the Army National Guard in May 1973. The examiner noted that there was no evidence of cervical spine myelopathy in September 1999. The VA examiner concluded by writing that all the evidence “support[s] a diagnosis of right cervical myelopathy at this time. It is therefore not likely that [the] Veteran’s current cervical spondylitic myelopathy was caused by neck condition of strain noted in service [in May 1971], and it is not the same condition as that noted [ in May 1971]. As noted above, the Veteran’s claim was appealed to CAVC, who vacated the Board’s previous October 2019 denial of this claim. They issued a JMR that highlighted the fact that the Veteran’s private treatment records reveal three separate diagnoses: A July 2006 note that includes a diagnosis of cervical spondylosis including bilateral foraminal narrowing in the mid-cervical spine; a September 2011 private treatment record that revealed congenital spinal stenosis made worse by multi-level degenerative spondylosis; and additional treatment notes for neck strain and cervical spondylitic spondylosis. The Veteran’s claim then returned to the Board in November 2020. In that Board remand it was first noted that one of the Veteran’s diagnoses may be congenital. For reference, in such cases where a preexisting disorder is not noted at service entrance, the burden is on VA by a “clear and unmistakable evidence” standard to show both a) the disorder preexisted service and b) the preexisting disorder was not aggravated in or during service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The Secretary (of VA) may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096) (emphasis added); see also Horn v. Shinseki, 25 Vet. App. 231 (2012). The Board noted that, as it pertains to the claimed disability, medical clarification may be necessary as to whether the veteran’s condition is a congenital or developmental “disease” or “defect.” See Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). If the claimed disorder is a disease, an opinion may be required as to whether it was at least as likely as not aggravated by the veteran’s period of active service beyond its natural progression. If the claimed disorder is a defect, an opinion may be required as to whether it was as likely as not subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. Congenital or developmental defects themselves are not diseases or injuries within the meaning of the applicable legislation and are generally not subject to service connection. 38 C.F.R. §§ 3.303 (c), 4.9 (2015); see Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection is only possible if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; VAOPGCPREC 11-99. Thus, in that prior remand from November 2020, the Board found that the Veteran’s claim had to be remanded for a VA examiner to provide an addendum opinion, so that each of the various diagnoses could be identified and documented over time, and a finding could be made as to whether or not the Veteran’s current spine disability was congenital. Following that, an etiological opinion could be provided as to the Veteran’s cervical spine disability. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159; See further Schafrath v. Derwinski, 1 Vet. App. 589 (1995). That VA addendum opinion came in November 2020. The Veteran was not seen in person, although that was not requested. The VA examiner indicated that a review of the Veteran’s claims file took place, and there is further evidence that the Veteran’s lay statements and testimony were considered. The examiner wrote that the “current diagnosis/condition is cervical spinal stenosis and spondylosis.” They also noted the previous diagnoses identified in the CAVC JMR and provided a detailed treatment history. The VA examiner indicated that the Veteran’s various diagnoses were less likely than not due to his active duty service. The following rationale was provided: Review of STRs document one episode of acute and transitory neck pain, no trauma, no sequela. Military separation exam negative. No medical evidence of a chronic or disabling neck condition during service or shortly after separation. No evidence to refute the 2013 VA medical opinion … current condition was diagnosed 2006 (moderate cervical spondylosis) and 2011 (spinal canal stenosis and multilevel spondylosis). In 2011 there was an MRI finding of congenital spinal stenosis. There are no medical records prior to service documenting a congenital cervical spine condition. There are no medical records during service documenting a disability due to or an aggravation of a congenital cervical spine condition. No evidence of additional disability due to aggravation during service of a congenital defect by any superimposed disease or injury. No evidence congenital spinal stenosis underwent any worsening during service or was worsened beyond natural progression by military service. Military entrance and separation exams were negative. Medical records silent 36 years before diagnosis of cervical spondylosis, 40 years before diagnosis of congenital spinal stenosis. … Neck muscle spasm in 1985, x-ray negative. Medical records indicate Veteran sustained neck and back injury from [motor vehicle accident (MVA)] in 1988, he had persistent pain and numbness in right arm, x-ray was normal, he was treated for 9 months with physical therapy. The 1988 MVA with significant sequela was not mentioned in the 2013 VA [exam] or in the BVA hearing. The examiner then noted additional treatment for neck pain in 2006, the diagnosis in 2011, and September 2011 private treatment records noting that “repetitive neck motions and overhead work can lead to spondylosis.” They then opined that “it is more likely than not the neck trauma with significant sequela from MVA, natural degeneration due to aging and microtrauma from wear and tear of past physical occupations led to the progression and resulting symptomatology of the cervical spine stenosis and spondylosis.” The examiner then cited to medical records documenting complaints of neck pain beginning in April 1985, the MVA from December 1988, and then to various medical literature to support their findings. Following the November 2020 VA addendum opinion, the Veteran submitted statements in January, February, and March 2021. Essentially, the Veteran has argued that the November 2020 addendum opinion is inadequate for three reasons. First the Veteran argues that he was not seen in person. Second, the Veteran argued that recent private treatment records from KP have not been uploaded to the Veteran’s claims file. Third, the Veteran argues that the examiner was “basing her opinion on the … 1988 motor accident to come to her conclusion,” and that other evidence of neck injuries prior to 1988 were not discussed. While the Board had not previously requested that the Veteran be seen in person prior to an opinion being rendered, the Board notes that the Veteran’s argument regarding the prior neck injuries is correct. The November 2020 VA addendum opinion provided an extensive and thorough etiological opinion, however that opinion does not cite to a number of examples that indicate the Veteran had neck pain and stiffness prior to his 1988 motor vehicle accident. In fact, and as identified in the preceding paragraph, the Board has identified at least thirteen separate instances from 1981 to 1988 where the Veteran was seen for complaints of neck pain, strain, and/or stiffness. Therefore, affording the Veteran the benefit of the doubt, the Board will remand the Veteran’s claim so that he can be afforded an in-person VA examination, and an addendum opinion can be provided which addresses the Veteran’s extensive history of complaints of neck pain prior to his motor vehicle accident in 1988. See Schafrath, Id. In addition, the Board notes that recent records from KP have since been associated with the claims file, however additional efforts should be made to ensure that the most recent records have been associated with the claims file. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records, to include recent records from KP regarding the Veteran’s treatment for his neck disability. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claims file. Should such records exist, associate them with the electronic claims file. 2. Schedule the Veteran for a VA examination (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran’s cervical spine disability. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After performing any/all necessary testing, the examiner should provide responses to the following questions: (a.) Opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s cervical spine disability is causally related to, or aggravated by, his military service. Any opinion should include a complete rationale and should take into account the lay statements and testimony provided by the Veteran. The examiner is reminded that the Veteran was seen on a number of occasions for neck pain, strain, and/or stiffness prior to the motor vehicle accident in 1988, with such examples including, but not limited to: A private treatment record from Kaiser Permanente [KP] in October 1980 noting “stiff neck for the last 2 days – woke up with it”; a U.S Department of Labor physicians report from Mare Island in August 1981 noting “sudden back pain after arising from reclining chair”; a KP treatment record from December 1981 noting a “stiff neck [for] 3 days”; a KP record from November 1982 noting “recurring episodes of sharp pain in mid back”; a KP treatment note from May 1983 noting a “stiff neck 2 days”; private medical records from January 1985 containing complaints of neck pain; April 1985 reports of neck pain and “possible tunnel”; Private medical records of neck pain in June, September, and October of 1985, and October and December of 1987; and a private treatment record from January 1988 discussing pain and stiffness in the shoulders and upper back. (b.) If not, does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran has a cervical spine disability or condition which preexisted service, and if so, whether that preexisting condition is congenital or not congenital? If the disability clear and unmistakable pre-existed service, is it at least as likely as not (50 percent or greater likelihood) that the pre-existing cervical spine disability underwent any worsening (i.e., increase in severity) during service? If so, is there clear and unmistakable evidence (undebatable) that such worsening of the pre-existing back disorder during service was due to the natural progress of the disease? If the Veteran’s pre-existing condition is a congenital defect, is there evidence of additional disability due to aggravation during service of the congenital defect by any superimposed disease or injury? A detailed rationale supporting the examiner’s opinion should be provided. If the examiner finds that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). 3. After completing the development noted above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue an SSOC to the Veteran and his Representative. After they have had an adequate opportunity to respond, return the appeal to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.