Citation Nr: 21042107 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-14 527 DATE: July 12, 2021 REMANDED Entitlement to service connection for a cervical spine (neck) disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1986 to May 1997. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. The VLJ held the record open for 90 days for the submission of supporting medical evidence. VA subsequently received no additional evidentiary submissions. Entitlement to service connection for a cervical spine disability is remanded. The Veteran, and his representative, contends that his current cervical spine disability stems from an in-service fall, after which he sought treatment in service because of tingling and numbness in his arms down to his hands. See Hearing Transcript (January 2021). The Veteran also reported seeing a private physician in Mississippi for his neck symptoms after an on-the-job injury in around 2000. Id. For reasons discussed below, the Board finds that remand is necessary. Service treatment records (STRs), dated in February 1995, show that the Veteran was seen for upper back and neck pain - reported the pain radiated to arms. See Medical Treatment Record - Government Facility (December 2013). Physical examination noted full range of motion of the cervical spine but tenderness to touch at C2-3; a clinical diagnosis was not provided. Id. A March 1997 Report of Medical Assessment shows the Veteran's report of strained neck as a result of an injury while on active duty, for which he did not seek medical care. See STR-Medical (October 1998). A March 1997 separation physical conducted just over a month prior to separation shows normal clinical evaluation of the spine. Id. In his concurrent Report of Medical History (ROMH), the Veteran marked "yes" and "no" for "swollen or painful joints," denied bone or joint deformity, and marked that he did not know as to having arthritis. Id. In April 1997, the Veteran was seen for neck pain that occurred while cleaning his house. See Medical Treatment Record - Government Facility (December 2013). He denied having weakness, numbness or radiating pain - physical examination noted decreased range of motion due to pain; the assessment was cervical strain. Id. An undated Emergency Service Triage Assessment shows pain in back of neck and the Veteran's report of a similar episode earlier that year. Id. The available post-service VA medical records show treatment beginning in March 2014, when the Veteran complained of chronic neck pain. See CAPRI (October 2014). The assessment at that time was cervical osteoarthritis/diskectomy/fusion. Id. X-rays showed ankylosis of C5-C6 with mild degenerative disease. Id. History of cervical fusion was noted in March 2014. See CAPRI (February 2018). An August 2014 VA treatment note shows ankylosis of C5-C6 2/2 diskectomy with mild residual degenerative disease. See CAPRI (October 2014). A September 2014 VA examination reflects a diagnosis of "cervical strain/cervalgia [sic] with DJD per xray, s/p cervical disc repair." See C&P Exam (September 2014). In the corresponding medical opinion, the examiner concluded that the disability was less likely than not related to service. Id. The opinion noted that there was no objective evidence to support that the Veteran was treated for a chronic neck condition during or soon after active duty service. The Board finds the VA medical opinion inadequate for adjudicative purposes. Hayes v. Brown, 5 Vet. App. 60, 69 (1993). An adequate medical opinion must be "accurate and fully descriptive," 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran's prior medical history, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, the opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). An adequate medical examination report or opinion must also "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In sum, although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303. In this case, first, the medical opinion is not shown to be based on consideration of the Veteran's prior medical history. For instance, the opinion does not discuss the significance of the (1) February 1995 in-service neck pain radiating to arms, (2) a March 1997 STR in-service report of strained neck as a result of an injury, (3) an April 1997 neck pain during housekeeping, (4) an undated Emergency Service Triage Assessment of pain in back of neck and the Veteran's report of a similar episode earlier that year or (5) the Veteran's contemporaneous lay statements, which, overall, are contrary to the opinions' conclusion of no evidence of treatment for a chronic neck condition. Second, the negative opinion relied solely on the absence of documented medical treatment from service separation in May 1997 until 2001, when the Veteran was treated for his civilian job injury. Although the Veteran, as a lay person, is not competent to opine on the etiology of his disability; he is, however, competent to report signs and symptoms of disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this instance, at the VA examination, the Veteran reported that since his initial in-service injury he has had neck pain with numbness and tingling radiating to his arm. The opinion, nevertheless, does not reflect consideration of the Veteran's competent lay reports and, inappropriately, reflects a reliance on the absence of documented treatment to form a negative conclusion. Moreover, there is competent evidence suggesting that the Veteran has arthritis of the cervical spine. See CAPRI (October 2014). It is noted that certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Thus, the applicable regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16 (1991). In this regard, the September 2014 VA examination report is inadequate as it does not show that appropriate diagnostic testing was conducted to confirm a finding of arthritis even though there was competent evidence suggesting its existence. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (evaluation of degenerative arthritis requires appropriate diagnostic imaging). Third, the opinion is inadequate because, as alluded above, it does not reflect a meaningful discussion of the Veteran's lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). It is noted that the clinician is not required to accept the Veteran's theory that his military service caused his cervical spine disability, or that he had symptoms associated with the disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion(s). If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. Thus, the absence of a meaningful discussion of the above evidence does not show awareness of seemingly relevant facts and therefore casts doubt on the medical opinion's foundation for the negative linkage opinion. Fourth, the opinion is inadequate because there is little to no rationale for the reached conclusions. Here, the opinion cites to other causative factors for the cervical spine disability but does not provide the Board with a reasoned rationale connecting the causative factor to the Veteran's current cervical spine disabilities. Nieves-Rodriguez, 22 Vet. App. at 301 (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). It is noted that generic and conclusory statements are insufficient to satisfy medical evidence of nexus requirement. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996). In other words, the Board may not rely on a medical examiner's conclusory statements if they lack supporting analysis. Instead, a medical opinion must be based upon consideration of the Veteran's prior medical history and examinations and also describe the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. In this case, the examiner referred to an on-the-job injury in 2000 or 2001 based on the Veteran's reports of such despite dismissing the Veteran's reports of neck pain in service and since on the basis of it not being "objective." It is unclear why the examiner seemingly attributed the Veteran's current cervical spine disability to the Veteran's reported post-service job injury, but also dismissed the Veteran's reports of in-service and continuing neck pain. The examiner indicated that one of the bases of the opinion was "medical literature review," but provided no indication of what medical literature was reviewed and how it supported the provided opinion. Thus, the absence of a meaningful discussion of the Veteran's prior medical history does not show awareness of seemingly relevant facts and therefore casts doubt on the medical opinion's foundation the opinion. Accordingly, given that the VA medical opinion is inadequate for decision making purposes, remand is necessary for an adequate medical opinion. Barr, 21 Vet. App. 303. Furthermore, it appears that the Agency of Original Jurisdiction (AOJ) submitted requests for service treatment and dental records; this request, however, did not include a request for service personnel records. Thus, a remand is required for the AOJ to obtain all outstanding service personnel records. Lastly, remand is necessary, because the Veteran's private treatment records from his 2000 and 2001 for a neck injury have not be obtained. 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b), (c)(1); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). At his January 2021 hearing, the Veteran reported being treated at a private facility after a work injury to his neck. The September 2014 VA examination also noted the Veteran's reports of the work injury. However, no treatment records from that time period have been associated with the file or requested from the Veteran. On remand, the Veteran should be informed that he should submit any medical treatment records in his possession and requested to authorize release of all relevant non-VA treatment record to VA. The Veteran is reminded that VA's duty to assist in the development of claims is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). He should cooperate and assist as requested in the development of this matters. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms/treatment/evaluation of his cervical spine disability since service discharge, to include those dated in 2000 and 2001 after a work injury. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain all VA treatment records dated from October 2017 to the Present. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's cervical spine disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The report of examination should, among other things, include a discussion of the Veteran's documented history and assertions. Address whether the documented in-service findings and/or the Veteran's reports about his symptoms align with how the currently diagnosed cervical spine disability is known to develop. The clinician must opine on: (a.) Whether any cervical spine disability is at least as likely as not related to an in-service injury, event, or disease. Consider the in-service reports of neck pain and documented in-service cervical strain along with the following: i. February 1995 in-service neck pain radiating to arms ii. A March 1997 in-service report of strained neck as a result of an injury iii. An April 1997 report of neck pain during housekeeping iv. An undated Emergency Service Triage Assessment of pain in back of neck and the Veteran's report of a similar episode earlier that year (b.) For arthritis of the cervical spine, whether 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 opinion should reflect consideration of the Veteran's documented relevant history and assertions. See generally, Hearing Transcript (January 2021). The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings. NOTE (1): The Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If any medical history is discounted or rejected, a full explanation is required. Also, if there is a medical basis to support or doubt the history provided by the Veteran (e.g. inconsistent reporting of onset of symptoms, medical implausibility, etc.), the clinician should provide a fully reasoned explanation. NOTE (2): An ade quate medical opinion may not rely solely on the absence of an in-service diagnosis for the claimed disability or the absence of documented treatment after service and the Veteran's work injury. 4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.