Citation Nr: 21028810 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 13-22 223 DATE: May 12, 2021 REMANDED The issue of entitlement to service connection for a cervical spine disability, claimed as an upper back condition involving the left and right shoulders, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2005 to May 2009. This matter is before the Board following his appeal of a January 2011 rating decision. In October 2016, the Veteran testified before the undersigned Veteran Law Judge (VLJ); a transcript of the hearing is of record. In July 2017 and December 2020, the Board remanded this appeal for additional development. Unfortunately, the Board finds that additional remand of the Veteran's claim of entitlement to service connection for a cervical spine disability, also claimed as upper back and shoulder conditions, is required. In this regard, the February 2021 opinion obtained pursuant to the Board's prior remand was not entirely responsive. Since a remand confers on the claimant, as a matter of law, the right to compliance with the remand order, the Board must again remand the Veteran's claim. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the February 2021 examiner failed to address all of the diagnoses shown in the record and listed in the prior Remand, including diagnoses related to the shoulders. Instead, the examiner focused entirely on the Veteran's "neck," and made no mention of his shoulder complaints or shoulder strain diagnosis. The examiner also did not appear to accept as valid (for purposes of the opinion), as requested, the Veteran's reports of shoulder pain from heavy lifting and weightlifting in service, and of neck and shoulder pain of years' duration. This is apparent from the examiner's references to and reliance on an absence of neck complaints in the service treatment records. As a final matter, the examiner noted that the Veteran had degenerative disc disease, which is a natural occurrence with age. However, there is no evidence that the examiner considered whether the MRI findings of DDD or spondylosis were consistent with the Veteran's age at the time imaging was performed, specifically 28 years old during an October 2012 cervical spine MRI and 35 years old during a February 2019 MRI. Given the foregoing, the Board finds that the February 2021 opinion is inadequate, and that a new opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing 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). It is noted that in ordering remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the clinician on remand consider the Veteran's own descriptions of the history of his cervical spine/shoulder disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: Send the claims file to a qualified examiner for an addendum opinion regarding the etiology of the Veteran's cervical spine/bilateral shoulder condition. The claims file should be made available for review, and the examination report should reflect that such review occurred. If a new examination is necessary, one should be scheduled. (a) The examiner should diagnose all current disabilities found in the record. In doing so, the examiner should note that the term "current" means occurring at any time during the pendency of the Veteran's claim, i.e., from May 2009 onward. The neck/upper back/shoulder disorder need not be present at the time of the examination; rather, it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the examination. The Board notes that the record shows past diagnoses of bilateral shoulder sprain, cervicobrachial syndrome, segmental dysfunction of the cervical spine, cervical sprain/strain, cervical spondylosis, and cervical brachial radiculitis. All of these disorders should be considered and discussed, in addition to any other disorders that may be found on review. If any specific disorder is ruled out, a complete explanation must be provided. That explanation should include a discussion of all the pertinent evidence of record, to include lay evidence. So, for example, if the examiner were to find that cervical segmental dysfunction is not a current disability, then the explanation should include a discussion of the VA medical records, prior VA examinations, as well as the Veteran's lay statements regarding his condition. If the examiner determines that any prior diagnosis cannot be validated, she or he should explain why. Then, for any diagnosed disorder, please provide the following: (b) Is it at least as likely as not (50 percent probability or more) that the disorder first manifested during or was otherwise caused by his service, to include heavy lifting or carrying therein, or as a result of a motor vehicle accident in which the Veteran sustained an injury to the face from his machine gun. In providing the opinion, the examiner should address whether the clinical findings of record are consistent with the Veteran's age (to include the MRI findings of spondylosis in 2012 when the Veteran was 28 years old). For the purpose of providing the opinion(s) requested in part (b), please accept as valid the Veteran's July 2010, October 2010, and March 2011 statements that he started to have shoulder pain in 2005 from heavy lifting and weight-lifting but did not seek treatment for it, and/or that he had neck and shoulder pain of years duration, and state whether a nexus between the Veteran's cervical spine or shoulder disability and service is medically consistent with the information provided by the Veteran. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). (c) If not directly related to service, is it at least as likely as not (50 percent probability or more) that the disorder was caused by his service-connected thoracolumbar strain? Please explain why or why not. (d) If not caused by service or the thoracolumbar strain, is it at least as likely as not (50 percent probability or more) that the disorder has been aggravated by the thoracolumbar strain? Please explain why or why. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since May 2009. The clinician should provide a complete rationale for any opinion rendered must be provided. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.