Citation Nr: 21030006 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 10-27 811 DATE: May 17, 2021 REMANDED Entitlement to service connection for a cervical/lumbar spine disability, to include as secondary to a left shoulder disability is remanded. REASONS FOR REMAND This appeal has an extensive procedural history that includes numerous remands to ensure that adequate VA examinations and opinions have been obtained. The appeal arises from a June 2008 rating decision that denied entitlement to service connection for a back condition. In November 2013, the Board denied service connection for a chronic cervical/lumbar spine disability, as well as a left shoulder disability which was also on appeal. The November 2013 decision was vacated by a March 2015 Memorandum Decision issued by the U.S. Court of Appeals for Veterans Claims (Court) which directed that the Board remand the claims to obtain adequate medical opinions. After remanding the claims in July 2015, the Board, again, denied service connection for the left shoulder and cervical/lumbar spine disabilities. See June 2017 Board decision. The Veteran appealed the June 2017 decision to the Court and, in January 2019, the Court issued an Order that granted a Joint Motion for Remand (JMR) which vacated the June 2017 decision and essentially directed that the claims be remanded for compliance with the directives of the prior July 2015 Board remand. After remanding the claims in July 2019, the Board issued a decision in January 2021 which denied service connection for the left shoulder disability but remanded the cervical/lumbar spine claim to, again, obtain an adequate medical opinion. An additional VA opinion was obtained in February 2021. Unfortunately, however, the Board finds that the February 2021 opinion is inadequate because it is not responsive to the Board's previous directives. In the March 2015 Memorandum Decision, the Court found that the VA opinions of record were inadequate. With respect to the cervical spine and left shoulder disabilities, the Court stated that the examiner failed to adequately consider the Veteran's medical history, specifically the severity of his in-service left shoulder condition. In this regard, the Court noted that the examiner did not address the evidence of joint pain, limitation of motion, receiving multiple injections, and being hospitalized for two months during his last year of service. The Court also stated that the VA examiner did not adequately explain the rationale that aging and occupational or activity factors were the more likely cause of the Veteran's current spinal disabilities. See April 2013 VA opinion. With respect to the lumbar spine, the Court, in pertinent part, stated the examiner failed to adequately consider the Veteran's medical history, as she did not address treatment records dated from 2005 to 2007 that showed lumbar spine complaints. See June 2013 VA opinion. As noted, following the March 2015 Memorandum Decision, the Board remanded the claims to obtain adequate medical opinions. Indeed, in both the July 2017 and most recent January 2021 remand, the Board directed the examiner to (1) consider the in-service complaints and findings of joint pain and limitation of motion, (2) include a discussion of the specific occupational or activity factors attributed the particular disability(ies) and describe how the aging factor was weighed against other factors, if deemed relevant, and (3) address treatment records from 2005 to 2007 showing lumbar spine symptoms. In the February 2021 opinion, the VA examiner noted that the Veteran had more than 61 years of occupational and/or other activity factors prior to and after his 3.5 years of active service, but the examination report lacks any discussion of the specific occupational or activity factors to which the examiner attributed the Veteran's wear and tear, which the Court has previously stated renders the opinion inadequate. See March 2015 Memorandum Decision, p. 4. The February 2021 VA examiner also discussed how disc degeneration can be caused by wear and tear with aging, but she did not otherwise discuss how she weighed the aging factor amongst the other relevant factors in this case, which the Court also indicated would render an opinion inadequate. See Id. While it appears the VA examiner considered the post-service treatment records showing complaints of cervical and lumbar spine symptoms during the 2000s, the examiner did not specifically identify any such treatment records which, in the Board's view, may lend the opinion to scrutiny if reviewed by the Court in the future. The same logic applies to the in-service complaints of joint pain and limitation of motion, as the examiner did not explicitly address this evidence or explain its relevance to the cervical/lumbar spine claims on appeal. As such, the evidentiary record in the same posture as it was at the time of the July 2015 Board remand, as it lacks a medical opinion that addresses the Veteran's medical history and is supported by a complete, fully-explained rationale. Therefore, while the Board regrets the additional delay, the Board finds a remand is needed to obtain an addendum opinion and to ensure substantial compliance with the previous directives of the Court and Board remands. The matters are REMANDED for the following action: 1. Request that an appropriate medical professional review the claims file and provide an addendum opinion regarding the Veteran's current cervical and lumbar spine disabilities. After reviewing the claims file, the examiner is requested to provide an opinion as to the following: (a) Is it as likely as not (a 50 percent probability) that the current cervical or lumbar spine disability had its onset during service or is otherwise related thereto, to include the in-service left shoulder injury? (b) Is it as likely as not (a 50 percent probability) that cervical or lumbar spine degenerative joint disease, or arthritis, was manifest within one year of the Veteran's separation from service? An opinion must be provided with respect to the cervical and lumbar spine. A complete, well-reasoned rationale must be provided in support of each opinion offered. In answering the foregoing, the examiner must address each of the foregoing: The service treatment records reflect that the Veteran suffered from joint pain and limitation of motion of the left shoulder for months, was diagnosed with chronic bursitis of the left shoulder, received multiple injection, and was hospitalized for about two months during his last year of service. The examiner MUST address whether this evidence is relevant to the onset, progression, and current nature of the current cervical or lumbar spine disabilities. If occupational, activity, or aging factors are deemed relevant to the current nature of the Veteran's cervical or lumbar spine disability, the examiner MUST include a discussion of the specific occupational or activity factors attributable to the particular disabilities and describe how each factor is weighed against other factors in this case in reaching the final conclusion. The examiner should consider the post-service medical evidence. A discussion of the first documented evidence of neck, low back, or cervical/lumbar spine pain or problems following service would be of considerable assistance to the Board. See e.g., private treatment records dated December 2003, August 2004, February 2005, and February 2006. The examiner should also consider the lay evidence of record. If there is any medical reason to accept or reject the Veteran's report regarding the onset and progression of his cervical and lumbar spine disability, this should be noted and explained. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.