Citation Nr: 21026057 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-26 023 DATE: April 29, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for headaches is remanded. REASONS AND BASES FOR REMAND The Veteran had active service from August 1969 to November 1970, in June 1994, from September 1995 to October 1995, from January 2003 to June 2003, from May 2007 to August 2007, and from July 2008 to October 2008. This appeal to the Board of Veterans’ Appeals (Board) arises from February 2013 and February 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in October 2018 before a Veterans Law Judge. A transcript of that hearing is of record. The hearing was before a now-retired judge. In January 2021 correspondence, the Veteran was offered the opportunity to appear at another hearing. In February 2021, he indicated that he does not wish to appear at another Board hearing. Therefore, the Board will proceed with appellate consideration of the case. The Board issued a remand in September 2019 instructing the RO to make efforts to obtain additional records and to provide the Veteran VA examinations to determine the nature and etiology of his claimed disabilities. As discussed below, the Board finds the VA examinations obtained in January 2020 pursuant to the September 2019 remand to be inadequate for decision-making purposes. 1. Entitlement to service connection for a lumbar spine disability is remanded. 2. Entitlement to service connection for a cervical spine disability is remanded. The Veteran contends that he performed heavy lifting, pushing, and bending during his active service. In a July 2013 Notice of Disagreement, the Veteran wrote that during his first period of active service he performed duties relating to artillery, which included building and assembling howitzer shells. That work was very demanding and involved heavy lifting. He also lifted heavy bomb components and pushed bombs across rollers during his later periods of active service. He first noticed his neck popping when he was deployed in Mississippi. He had to wear hard metal helmets and flak jacket. He has also reported that he experienced neck and back pain at other times during his active service but did not seek treatment because his duties were demanding, and he needed to maintain the respect of those he was supervising. He has further reported that, outside of his active service and his service with the National Guard, he worked as a manager for the United States Postal Service, which did not involve any heavy lifting. Thus, the Veteran contends that he developed back and neck problems during his active service, that such problems have continued in the years since his active service, and that his disabilities are related to his active duty service. The Veteran was provided a VA examination in January 2020 for his neck. The examiner diagnosed the Veteran with disc degeneration and facet arthritis, which had an onset in 1988 following a motor vehicle accident. He did not seek treatment at that time, but was later told that he had bone spurs in his neck. He experienced flare-up one to two times a month, usually lasting a few days and involving pain and stiffness. The examiner opined that the Veteran’s neck condition was less likely than not due to or related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner stated that degenerative disc disease and degenerative arthritis are not caused by environmental exposures but are generally due to acute injury of years of inflammation, overuse, and repeated small trauma. The Veteran was also provided a VA examination in January 2020 for his lower back. The examiner diagnosed the Veteran with disc degeneration and facet arthritis with an onset date of 2003. The examiner opined that the Veteran’s back condition was less likely than not due to or related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner stated that the back condition was from heavy use over many years. The examiner acknowledged in detail the many reports of back pain the Veteran made in the record. In particular, the examiner noted that on a statement in support the claim, the Veteran wrote that his back pain started one day in 2013. This medical opinion does not provide an adequate rationale regarding whether the Veteran’s diagnosed cervical spine and lumbar spine may have had their onset during his active service, may have been caused by the Veteran’s in-service strenuous activities, or may be a sign or symptom of an undiagnosed illness or medically unexplained chronic multisymptom illness such that compensation is warranted under the provisions of 38 C.F.R. § 3.317. 3. Entitlement to service connection for headaches is remanded. On the July 2015 VA Form 9, the Veteran wrote that during his first period of active service he was not provided ear protection and instead, “just stuck cigarette butts in our ears.” He began to get headaches from artillery noise at that time. He also worked in the heat without sufficient water and believes that at one point he may have suffered a heat stroke. After his separation from active service, he continued to suffer from headaches. He also asserted that the headaches may be related to exposure to burn pits while in Southwest Asia. His service treatment records show that on a May 2003 post-deployment health assessment he indicated that he had headaches during his deployment. At the October 2018 Board hearing, the Veteran testified that during his deployment he was exposed to burn pits and he is currently prescribed medication for his headaches. The Veteran was afforded a VA examination in January 2020 to determine the nature and etiology of his headaches. The examiner diagnosed the Veteran with tension headaches and noted a reported onset in 1988 following a motor vehicle accident. The examiner opined that the Veteran’s tension headaches were less likely than not related to a specific event or exposure experienced in Southwest Asia. The examiner further wrote that the Veteran’s headaches were more likely than not due to his cervical problem, which was due to years of minor injury, inflammation, and stress which and not limited to the Veteran’s service in Southwest Asia. This medical opinion does not provide an adequate rationale regarding whether the Veteran’s headaches may have had their onset during his active service, may otherwise be etiologically related to an in-service factor, or may be a sign or symptom of an undiagnosed illness or medically unexplained chronic multisymptom illness such that compensation is warranted under the provisions of 38 C.F.R. § 3.317. These matters are REMANDED for the following action: 1. Obtain an addendum opinion as to the Veteran’s claimed cervical spine and lumbar spine disabilities either from the previous examiner or another appropriate clinician. The entire claims file, including a copy of this remand, must be provided for review prior to an opinion being rendered. The examiner is asked to review the file and provide a medical opinion for the following: Whether the Veteran’s cervical spine disability is at least as likely as not (50 percent probability or greater) caused by or a result of an injury, illness, or event during any of his periods of active service. Whether the Veteran’s lumbar spine disability is at least as likely as not caused by or a result of an injury, illness, or event during any of his periods of active service. The examiner is asked to render an opinion as to whether any specific injury in service caused the Veteran’s current disabilities and/or whether the cumulative effects of all the Veteran’s active duty service caused the Veteran’s current disabilities. The opinion must reflect consideration of the Veteran’s statements as to his duties in artillery, which included heavy lifting, pushing, and bending. It must also reflect consideration of the Veteran’s reports that he experienced neck and back pain during his active service but did not seek treatment for that pain because his duties were demanding, and he needed to maintain the respect of those he was supervising. For purposes of providing the opinions, the Veteran should be considered credible in those reports. If not, the clinician should also provide an opinion as to whether it is at least as likely as not that the Veteran has a qualifying chronic disability, such as an undiagnosed illness or a medically unexplained chronic multisymptom illness as defined under 38 C.F.R. § 3.317, that is manifested by muscle and/or joint pain in the neck and low back. In that regard, the examiner must state whether the Veteran’s diagnosed cervical spine and lumbar spine disabilities have an etiology that is (1) inconclusive, (2) partially understood, or (3) fully understood, and whether those diagnosed disabilities have a pathophysiology that is (1) inconclusive, (2) partially understood, or (3) fully understood. This determination must be based on the Veteran’s specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. A thorough rationale must be provided for all opinions expressed. If the examiner is unable to provide an opinion without mere speculation, then the examiner must state this and explain why. If possible, the examiner should identify any information that would allow an opinion to be made without speculation. 2. Obtain an addendum opinion as to the Veteran’s claimed headaches either from the previous examiner or another appropriate clinician. The entire claims file, including a copy of this remand, must be provided for review prior to an opinion being rendered. The examiner is asked to review the file and provide a medical opinion for the following: Whether the Veteran’s headaches are at least as likely as not (50 percent probability or greater) caused by or a result of an injury, illness, or event during any of his periods of active service. The examiner is asked to render an opinion as to whether any specific injury in service caused the Veteran’s current headaches and/or whether the cumulative effects of all the Veteran’s active duty service caused the Veteran’s current disabilities. The opinion must reflect consideration of the Veteran’s assertions that he began to get headaches after being exposed artillery noise during his first period of active service; that he worked in the heat without sufficient water and believes that at one point he may have suffered a heat stroke during his active service; and that he had headaches during his later periods of active service. For purposes of providing the opinions, the Veteran should be considered credible in those reports. The opinion must also reflect consideration of the May 2003 post-deployment health assessment on which the Veteran indicated that he had headaches during his deployment. If not, the clinician should also provide an opinion as to whether it is at least as likely as not that the Veteran has a qualifying chronic disability, such as an undiagnosed illness or a medically unexplained chronic multisymptom illness as defined under 38 C.F.R. § 3.317, that is manifested by headaches. In that regard, the examiner must state whether the Veteran’s headaches have an etiology that is (1) inconclusive, (2) partially understood, or (3) fully understood, and whether the headaches have a pathophysiology that is (1) inconclusive, (2) partially understood, or (3) fully understood. This determination must be based on the Veteran’s specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. A thorough rationale must be provided for all opinions expressed. If the examiner is unable to provide an opinion without mere speculation, then the examiner must state this and explain why. If possible, the examiner should identify any information that would allow an opinion to be made without speculation. T. J. ANTHONY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.