Citation Nr: 21029821 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-48 844 DATE: May 17, 2021 REMANDED Entitlement to service connection for a cervical spine (neck) disability, to include as secondary to lumbar spine disability, is remanded. Entitlement to service connection for tension headaches, to include as secondary to a cervical spine disability and the lumbar spine disability, is remanded. Entitlement to an evaluation in excess of 10 percent for lumbar spine disability is remanded. REASONS FOR REMAND The Veteran had active duty from March 2006 to September 2006, and from October 2007 to September 2008. In a June 2019 decision, the Board of Veterans' Appeals (Board) denied the Veteran's claims, among others, for service connection for cervical spine and headache disabilities as well as an increased rating for lumbar spine disability. Thereafter, the Veteran appealed the June 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court), and the parties entered into a Joint Motion for Partial Remand (JMPR). In the May 2020 JMPR, the parties limited their appeal to the denial of service connection for cervical spine and headache disabilities, and an increased rating for lumbar spine disability. Specifically, in the May 2020 JMPR, the parties agreed that the Board provided an inadequate statement of reasons or bases regarding the Veteran's cervical spine disability, as well as determined that the evidence suggests the Veteran's tension headaches are related to her cervical spine complaints. As for the increased rating for her lumbar spine disability, in the May 2020 JMPR, the parties agreed that the Board erred in relying on an inadequate February 2019 VA medical examination and opinion as the examiner failed to provide a rationale to support the conclusion that the Veteran had no additional loss of range of motion during a flare up. As such, in an October 2020 Board decision, the claims were remanded for further development to schedule new examinations and to obtain addendum opinions. 1. Entitlement to service connection for a neck disability. First, as for the claim for service connection for a neck disability, the Board requested the examiner to determine whether the Veteran has a current neck disability, and to specifically consider the private treatment records from December 2012 to August 2013 and from July 2015. Here, the November 2020 examination report indicated there was no cervical spine condition; but then marked that the Veteran has "intermittent pain to lateral aspects of neck radiating to the head worsened with activity." This fails to consider that painful motion may constitute a disability if it causes functional impairment, or to consider the private records that shows "areas of subluxations" that include cervical spine. Further, the examiner did not provide an etiology or explanation as to what is causing the Veteran's reported neck pain or indicate if there was any reduction in range of motion or give an adequate opinion on functional impairment during the Veteran's reported flare ups. Rather, the examiner gave an opinion in November 2020 that due to there being no neck disability, it was less likely than not that any neck condition is due to or the result of the back disability. Then, in a February 2021 addendum opinion, the examiner was asked to consider the aforementioned private records and determine if a diagnosis is warranted. However, the examiner only discussed that a cervical spine condition would not cause or be responsible for headache pain but does not state affirmatively whether there is a neck disability or not; nor does the examiner discuss or expressly opine, with a clear rationale, whether the same underlying incident which caused the back disability also caused or aggravated the Veteran's current neck pain. The fact the Veteran's condition was normal at discharge does not preclude service connection being granted for a post-service condition if it is, in fact, related to the service injury or the service-connected disability. As such, another opinion is warranted. 2. Entitlement to service connection for a headache disability. Next, as for the headache disability, as determined by the parties in the JMPR and again noted in the 2020 Board decision, the evidence suggests the Veteran's tension headaches are related to her cervical spine complaints. Therefore, the headache claim is inextricably intertwined with the neck disability claim. Further, the opinions from November 2020 and February 2021 are conclusory and not probative. For example, the 2020 examiner stated the headaches were less likely than not incurred in service or due to the Veteran's neck or back disabilities because there is no evidence to connect the conditions. The 2021 addendum opinion rationale was that while the Veteran has had occasional headaches, the records are silent for a neck or back condition which is clearly inadequate as the Veteran is currently service-connected for her back disability, and the private records that the examiner was requested to review show neck pain complaints. The Veteran also submitted medical literature which indicates a possible association between headaches and back pain; this must be addressed on remand. 3. Entitlement to an increased rating for a low back disability. Third, as for the increased rating for the back disability, the November 2020 examination is tainted by the same flaws as the prior VA examination reports. Specifically, the 2020 examiner again noted that the Veteran reported flare ups, which includes spasms, pain, and tightness; but failed to provide or opine with medical reasoning or rationale that there was no additional functional limitation or range of motion loss during a flare up. The 2020 Board remand directives specifically stated: "The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements." Here, the examiner noted the Veteran was able to perform repetitive use testing with no additional loss of function or range of motion, but also stated that the Veteran was not being examined after repetitive use testing or during a flare up. Regardless, the examiner marked the range of motion following repetitive use or during a flare up was the same as the initial testing results. As noted in the 2020 remand, this is not adequate. Further, the Veteran has a diagnosis for ankylosing spondylosis, but the examiner stated that "ankylosing spondylitis is typically an auto immune condition and is less likely than not related to the service-connected condition...[but] symptoms cannot be differentiated" (emphasis added). First, the Board finds the opinion stating "typically" with no rationale is too speculative and is of little probative value. Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (without supporting clinical data or other rationale, [the expert's] opinion simply is too speculative to provide the degree of certainty for medical nexus evidence.). Additionally, an opinion should be obtained to determine whether the Veteran's ankylosing spondylosis is secondary to her service-connected back disorder and determine which, if any, symptoms are distinguishable from those due to service-connected depressive disorder. Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question must be attributed to the service-connected disability). The examiner must state whether the Veteran's ankylosing spondylosis is favorable or unfavorable for rating purposes. Finally, the Veteran mentioned during her examinations that she goes to a chiropractor for her back and neck pain. These records should be requested and attempts to retrieve them should be made on remand. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the medical providers identified in the evidence of record (to include her chiropractor). Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 2. Request an addendum opinion for the Veteran's claimed neck pain from the November 2020 examiner, or another examiner if he is not available. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. Then, the examiner must opine as to the following, with full supporting rationales: (a.) whether the Veteran's current neck symptoms of pain cause functional limitation or impairment; (b.) whether is at least as likely as not the Veteran's neck disability is due to an in-service disease, event, or injury, to include the event in service that caused the service-connected back disability; (c.) whether is at least as likely as not the Veteran's neck disability is proximately due to or aggravated by her service-connected lumbar spine disability. A complete explanation should be provided for all opinions on causation AND aggravation. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 3. Request an addendum opinion for the Veteran's claimed headaches from the November 2020 examiner, or another examiner if he is not available. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. Then, the examiner must opine as to the following, with full supporting rationales: (a.) whether her tension headache disability is at least as likely as not proximately due to or aggravated by her service-connected lumbar spine disability. (b.) whether her tension headache disability is at least as likely as not proximately due to or aggravated by her cervical spine disability. Attention is invited to medical literature the Veteran submitted which indicates an association and possible relationship between headaches and back pain. See two medical articles submitted in March 2021 (Labbafinejad, et al; and Yoon, Min-Suk, et al). 4. Schedule the Veteran for a VA examination to determine the current severity and impact of the back disability, and to determine the nature and etiology of her back disorder with her ankylosing spondylosis. The examiner is asked to: (a.) Determine the current severity of her back disability. (b.) Test for pain on active motion, passive motion, weightbearing, and non-weightbearing. If pain begins at a point other than where range of motion ends, the examiner should indicate where pain starts. (c.) If the examination is not being conducted during a flare-up, attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must also provide range of motion results or a reasoned opinion as to the range of motion limitations follow repetitive motion testing and flareups. It is not enough to simply mark that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during flare-ups will be deemed inadequate. (d.) Indicate whether there is any form of ankylosis and to opine as to whether is at least as likely as not that the Veteran's ankylosing spondylosis was caused or aggravated by her service-connected back disorder. If the answer to (b) is no, then the examiner should also offer an opinion regarding whether symptomatology associated with the Veteran's other diagnosed (but non-service connected) back disorders (e.g., her ankylosing spondylosis) can be distinguished from the symptomatology associated with the service-connected back disability. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Hoy, 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.