Citation Nr: 21024304 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 19-36 736 DATE: April 22, 2021 REMANDED Entitlement to service connection for osteoarthritis of the neck is remanded. Entitlement to service connection for lumbosacral spine degenerative joint disease is remanded. REASONS FOR REMAND The Veteran performed active duty service from July 1959 to May 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Board remanded this matter for more development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). 1. Entitlement to service connection for osteoarthritis of the neck is remanded. 2. Entitlement to service connection for lumbosacral spine degenerative joint disease is remanded. The Veteran seeks service connection for osteoarthritis of the neck and for lumbosacral spine degenerative joint disease. The Veteran contends that he injured his back and neck as a result of pulling a safety chain due to inoperative equipment. Specifically, in the Veteran’s August 2016 statement in support of his claim, the Veteran stated that his back and neck problems began in service as a result of a pulling a chain, after a jet had an emergency landing. The chains were usually pulled by tractors, but the equipment was broken so he was forced to do it. He stated that he has had back and neck problems ever since and has taken pain killers to put off undergoing an operation. In November 2019, the Veteran submitted a statement that he injured his back in 1960. He went to the nurse, she gave him meds, and the nurse told him to suck it up, so he did not mention his back pain again after that. He also stated he started pain medication 20 years ago, and he can’t sleep over 4 or 5 hours due to the pain in his back. The Veteran provided statements from his wife and son in August 2016. They stated the Veteran told them he injured his back and neck as result of pulling a safety chain due to inoperative equipment after a jet had an emergency landing. He was fearful of possible repercussions, so he remained quiet about the pain. He stated that he was in pain for the remainder of his active service and that he went on sick call often and was prescribed an all-purpose compound for the pain. His wife and son stated that they had seen his back and neck problems limit his mobility and affect his quality of life. They also stated that the Veteran has had back problems throughout his life and has seen several doctors and specialist that prescribed painkillers. Service treatment records reveal the Veteran complained of back pain and suffered a lumbar strain in May 1960, but they do not indicate any treatment or complaints for a neck injury. Post-service treatment records reveal the Veteran complained of pain in his neck in March 1990 and February 1997. The Veteran complained of back pain and stated that he was picking up an object and he felt pain in his right lower back radiating down his right lower leg in November 2000. An October 2001 MRI revealed degenerative lumbar disc disease and the October 2004 MRI revealed, degenerative joint disease of the cervical and lumbosacral spine with chronic pain. The Veteran reiterated that he had chronic neck and back pain in May 2012. In December 2014, the Veteran stated that he was in a rear-end collision where he sustained an injury to his neck, and he was diagnosed with osteoarthritis in the neck and lower back in May 2016. In September 2019, the Veteran was afforded a VA examination for his back. The Veteran reported he injured his back in 1960 during military service when he was moving a large heavy chain when he “snapped” his back, leading to continued, chronic back pain. The examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by service. As to the rationale, the examiner stated that although the Veteran reported that he injured his back in service, his separation examination was silent for a back condition. The examiner also noted that the Veteran received treatment for a lumbar strain in 1960, but there were no other records to indicate that this injury was chronic in nature. The examiner noted that the private medical records first indicated a back disorder in 2000, which was over 35 years after military discharge, and that there was a lack of medical evidence to suggest a chronic back condition existed during military service or the year following discharge. In December 2020, the Veteran was afforded a VA examination for his back condition. The examiner noted that the Veteran was diagnosed with a degenerative arthritis of the spine condition. The Veteran reported that he was injured while moving heavy chains associated with emergency aircraft landings. He reported receiving treatment and was given aspirin. The Veteran reported that he has had ongoing back pain since this injury. The Veterans symptoms include pain, sleep disturbances from the pain, and pain down the right leg. The examiner opined that the claimed back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner explained that while the Veteran’s service treatment records reflect reports of lumbar strain during service, there were no back issues identified at the time of the Veteran’s separation. The examiner also stated that the “diagnostic data revealed degenerative changes of the spine, which are chronic in nature…. There is no correlation between the acute injury incurred while in service and the current diagnosis.” In December 2020, the Veteran was afforded a VA examination for his cervical neck condition. The examiner noted that the Veteran was diagnosed with degenerative arthritis of the spine; Spur formation C3-C6; [retrolisthesis] C5 in relation to C6; and “deformity of the spinous processes lower cervical spine.” The Veteran reported that, He was in the crash crew at Virginia Beach Air Station and one morning, he was asked to assist with a large chain that helps with aircraft landings. He states he jerked his back and neck while trying to hook a link of the chain and pull it with force. He states he reported the injury to medical and was given aspirin. The Veteran reported that since his military service he has had progressive trouble flexing his neck, has pain, and has impaired mobility. His current symptoms include impaired mobility, difficulty flexing neck [posteriorly], and pain. The examiner opined that the claimed cervical 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. As to the rationale, the examiner explained that the Veteran’s neck injury was acute only and that there is no evidence of chronicity of care and that the symptoms are subjective only. The examiner also indicated that the Veteran has chronic degenerative changes unrelated to the event described by the Veteran while in service. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA medical opinion for the Veteran’s back/neck disabilities. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that the September 2019 and December 2020 VA examiner’s appear to have completely disregarded the lay statements of the Veteran and the supporting statements from his wife and son regarding his symptoms of back and neck pain which they contend began in service and continued since that time. Veterans, as lay persons, are generally competent to report on symptoms as they experience them. Therefore, the VA examiner’s opinion regarding the Veteran’s degenerative arthritis of the spine and cervical spine conditions are inadequate because the examiner did not consider all of the evidence, and the claim must be remanded to obtain adequate opinions. Barr, 21 Vet. App. at 311. The matter is REMANDED for the following action: 1. Return the Veteran’s complete record, to include a copy of this remand, and the claims folder to the VA examiner who reviewed the file and provided the December 2020 medical opinion, hereinafter “examiner,” for an addendum opinion. If it is not possible to obtain clarification from the examiner, then forward the Veteran’s claim file and a copy of this remand to another appropriate medical professional who has the requisite experience to render the requested medical opinion. The examiner must specifically note on the report whether such files were reviewed in connection with this addendum opinion. No examination of the Veteran is necessary unless the examiner deems otherwise. 2. The examiner should then address the following: (a.) Determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s degenerative arthritis of the spine condition arose during or was otherwise caused by the Veteran’s military service. (b.) Determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine condition arose during or was otherwise caused by the Veteran’s military service. (c.) The examiner must note and address the following: i. The Veteran contends that he went to the nurse during service, she gave him meds, and the nurse told him to suck it up, so he did not mention his back pain again after that. He also stated he started pain medication 20 years ago, and he can’t sleep over 4 or 5 hours due to the pain in his back. ii. The Veteran contends that Dr. Leslie Watts at the VA medical center in Kentucky stated it is more likely than not that the Veteran’s back problems stem from his issues sustained in the military. iii. The Veteran contends that he had neck pain prior to his motor vehicle accident. iv. The Veteran’s spouse and son indicated that the Veteran feared reprisal and/or repercussions so he remained quiet. v. The Veteran’s spouse and son indicated that the Veteran experienced pain and would go to sick call often, where he would be prescribed APC (all-purpose compound) for the pain. vi. The Veteran’s spouse indicated that she met the Veteran shortly after his discharge and the Veteran has had severe back and neck problems and limited mobility, and has received treatment throughout his life and has been seen by several doctors and specialists that prescribe him pain killers and other therapies to prolong the necessity of surgery. 3. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. 4. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 5. After completing the above, and conducting any further development deemed necessary, readjudicate the claims. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist 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.