Citation Nr: 21040814 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-21 988 DATE: July 7, 2021 REMANDED Entitlement to service connection for arthritis of the cervical spine is remanded. Entitlement to service connection for arthritis of the lumbar spine is remanded. Entitlement to service connection for cervical strain is remanded. Entitlement to service connection for lumbar strain is remanded. Entitlement to special monthly compensation based on the need for aid and attendance due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1981 to February 1983. By way of background, these matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The claims were previously before the Board in June 2020, at which time the Board remanded the claims to the agency of original jurisdiction (AOJ) to identify and obtain any outstanding medical records relevant to the appeal and to afford the Veteran a VA examination to determine the nature and etiology of any diagnosed cervical and lumbar spine disorders. The appeal has now been returned to the Board for further appellate consideration. However, as discussed further below, the Board finds that there has not been substantial compliance with its June 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for arthritis of the cervical spine; entitlement to service connection for arthritis of the lumbar spine; entitlement to service connection for cervical strain; and entitlement to service connection for lumbar strain are remanded. Although it sincerely regrets the additional delay, the Board finds that another remand is warranted before the Veteran's appeal can be properly adjudicated on its merits. Pursuant to the directives of the June 2020 remand, the Veteran was afforded a VA examination to ascertain the nature and etiology of any cervical and lumbar spine disorders present. In January 2021, the Veteran underwent a physical examination; and the examining clinician documented a diagnosis of cervical strain. See VA examination dated January 21, 2021. However, elsewhere in the medical report, the clinician reported that November 2020 imaging studies of the Veteran's cervical spine indicated degenerative or post-traumatic arthritis, specifically, "tiny multilevel anterior endplate osteophytes with disc heights maintained." Considering that the examination took place approximately two months after such imaging and that the examiner did not provide a diagnosis of arthritis of the cervical spine, the information contained within the medical report is internally inconsistent. The clinician also diagnosed the Veteran with lumbosacral strain and degenerative arthritis of the lumbar spine, basing the latter diagnosis on the results of an October 2020 X-ray that depicted "[m]ild degenerative changes of the lumbar spine." However, neither the November 2020 imaging studies of the Veteran's cervical spine nor the October 2020 imaging studies of the Veteran's lumbar spine cited by the clinician are associated with the record. Moreover, the Veteran has relayed that no such studies were conducted. See correspondence dated March 5, 2021. Notably, imaging studies of the Veteran's cervical spine and lumbar spine were specifically requested by the Board in its prior remand, as such testing is an essential form of evidence necessary to determine the existence of arthritis. Additionally, the Board finds the nexus opinions provided by the January 2021 examiner inadequate for adjudicative purposes. As an initial matter, the examiner did not explicitly provide opinions as to whether the Veteran's diagnosed cervical and lumbar spine disorders were incurred in or are otherwise etiologically related to his military service, although the furnished rationale would seem to support negative opinions. Furthermore, the examiner's opinion appears to cast doubt on the accuracy of Veteran's lay statements concerning a continuity of symptomatology of the claimed disabilities, based solely on a lack of medical documentation corroborating his statements. Finally, the examiner's reasoning seemingly questions the consistency of the Veteran's statements attributing the origin and/or onset of his lower back pain to various injuries without explaining why the Veteran's low back pain could not have been caused by multiple injuries or, alternatively, how subsequent injuries did not exacerbate such after an initial back injury during service. In sum, the Board finds the January 2021 examination inadequate to allow the Board to render a fully-informed decision on the merits of the Veteran's claims, because the requested diagnostic imaging studies of the cervical and lumbar spine either were not conducted or are not associated with the evidentiary record and because the medical report of the Veteran's cervical spine contains factual inconsistencies. Moreover, the Board finds the nexus opinions insufficient for adjudicative purposes, as the examiner did not furnish a clear opinion as to whether the Veteran's diagnosed conditions are at least as likely as not related to his service and as the opinions discount the Veteran's reported medical history without an adequate basis for doing so. The Board must ensure compliance with the terms of its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders). In the present case, the Board finds that there has not been substantial compliance with its June 2020 remand directives. Therefore, another remand is required in order to afford the Veteran a new VA examination and to procure new nexus opinions supported by a thorough, well-reasoned rationale. 2. Entitlement to special monthly compensation based on the need for aid and attendance due to service-connected disabilities is remanded. Finally, because a decision on the issues remanded above could significantly impact a decision on the issue of entitlement to special monthly compensation, the issues are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are "inextricably intertwined" where action on one matter could have a "significant impact" on the other). Therefore, a remand of the issue of entitlement to special monthly compensation based on the need for aid and attendance, due to service-connected disabilities, is also required. Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to ascertain the nature and etiology of any cervical and lumbar spine disabilities the Veteran currently has or has had at any time during the course of his appeal. The Veteran's claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be undertaken, including imaging of the cervical and lumbar spines (if not conducted since the issuance of the Board's June 2020 Remand) to determine the existence of any arthritis present in the Veteran's cervical and lumbar spines. After a thorough review of the claims file, to include in-service and post-service medical treatment records and the Veteran's lay statements concerning the onset and symptomatology of the disabilities on appeal, the examiner must document all diagnosed disorders of the cervical spine and lumbar spine. Thereafter, the examiner is asked to provide the following opinions: (a.) Is it at least as likely as not (i.e., a 50 percent or higher probability) that any cervical spine or lumbar spine disorder currently diagnosed or diagnosed during the course of the Veteran's appeal, to include cervical arthritis, cervical strain, lumbar arthritis, and lumbar strain, was either incurred in the Veteran's active duty service or is otherwise related to his military service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is the find against it. If the basis of a negative opinion is the absence of medical records documenting treatment for the claimed disabilities, the examiner must explain (i) whether treatment for a diagnosed cervical or lumbar spine disorder, or symptoms thereof, would have been noted in the Veteran's medical treatment records at the time; and (ii) whether the Veteran would have sought treatment for such a disorder or its symptoms at the time. The examiner's opinion should specifically address the Veteran's lay statements. Notably, the Veteran is competent to attest to his symptomatology, including its onset. If there is any medical reason to doubt the accuracy of the Veteran's lay statements, the examiner should provide a thorough explanation as to why this is so, utilizing the examiner's personal assessment of the Veteran and/or the evidence of record. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After the above has been accomplished, readjudicate the issues on appeal. If any benefits sought are not granted, then the Veteran should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further appellate review. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Tolbert, 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.