Citation Nr: 21027530 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 08-22 022A DATE: May 6, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran had active military service from August 1990 to May 1991, and September 2004 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran claims service connection is warranted for a cervical spine disability. Initially, the Board recognizes the Veteran has a current cervical spine diagnosis. In April 2006, a VA examiner diagnosed the Veteran with neck strain and degenerative disc disease of the cervical spine. More recently, a January 2021 examiner confirmed the presence of degenerative arthritis of the spine, which was noted as diagnosed in 2005, and intervertebral disc syndrome, which was noted as diagnosed in 2020. The question becomes whether the Veteran's current disability is causally connected to his military service. At the time of the April 2006 VA examination, the Veteran stated that he had a neck injury in 1992 at the VA in Fresno. He reported that his neck pain worsened around 2000. The examiner did not opine as to the etiology of the Veteran's cervical spine disability. At the time of the January 2021 VA examination, the Veteran reported that he injured his neck in 1992 as a student volunteer at the Fresno VA kitchen. The Veteran stated that between 1992 and 2004 he had occasional neck pains. In 2004, while deployed to Kuwait, the Veteran recalled that he kept straining his neck and that his neck pain gradually worsened over the years. This examiner opined that the Veteran's cervical spine disability clearly and unmistakably existed prior to service. The basis for this determination was limited to the Veteran's report of having hurt his neck in 1992. The examiner made no reference to the Veteran's service treatment records (STRs), which do not show a noted cervical spine disability present at the time of his initial entrance examination in July 1990, or at the time of an August 1999 periodic examination. Further, in a December 2004 STR, shortly after his entry into his second period of active service, the Veteran was noted to have normal neck with no complaints of neck pain. The examiner made no mention of these findings in the rationale for finding that the Veteran had a cervical spine disability that clearly and unmistakably existed prior to service. A Veteran is presumed in sound condition except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. § 1111 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. The U.S. Court of Appeals for Veterans Claims (Court) explained that even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Yanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)); see also Yanerson, 12 Vet. App. at 263 (Nebeker, C.J., concurring in part and dissenting in part) ("[O]nly an inference that is iron clad and copper riveted can be 'unmistakable.'"). In this case, the Veteran reported a 1992 incident involving his neck, which is after his first period of active service, but prior to the second, yet, there is no notation of a cervical spine disability present on any STR at the time of the Veteran's entrance into his second period of active service. Thus, the basis for the VA examiner's opinion is unclear and certainly is not made using the correct standard for cases such as this. The Board finds that a new opinion should be sought. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). This matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician related to the Veteran's claim for service connection for a cervical spine disability. If a new examination is deemed necessary by the clinician completing the report, then such an examination should be scheduled. The clinician must review the Veteran's contentions, as well as his service treatment and post-service treatment records. The examiner is also asked to opine, based upon a review of the findings in the service treatment records, whether any currently diagnosed cervical spine disability clearly and unmistakably (undebatable) preexisted the Veteran's service. The clinician can, of course, consider the Veteran's report of hurting his neck in 1992, but the opinion must be whether a disability was clearly and unmistakably present prior to the Veteran's entrance into his second period of active service in 2004, particularly given the lack of a notation of disability at the time of entrance into his second period of active service. If the clinician finds that a cervical spine disability did clearly and unmistakably preexist service, the examiner must then opine whether it was clearly and unmistakably not aggravated by service. If the clinician finds that the cervical spine disability either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the clinician must opine whether any cervical spine disability diagnosed is at least as likely as not related to an in-service injury, event, or disease, including the rigors of the Veteran's service such as described by the Veteran, as well as any notations of neck symptoms in the service treatment records. Given the diagnosis of arthritis, the clinician is also asked to opine whether the arthritis at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The report should include reasons for any opinion expressed. If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person's knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.