Citation Nr: 21042512 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-55 666 DATE: July 13, 2021 REMANDED Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1974 to July 1974 and on active duty for training (ACDUTRA) from November 1977 to February 1978. The Veteran was scheduled for a hearing on October 15, 2019. However, the Veteran did not appear for his hearing or attempt to provide a good cause explanation. Therefore, the Board will proceed. The Veteran was denied service connection for anxiety neurosis in April 1979. In December 2014 he sought service connection for "PTSD/Anxiety." The Agency of Original Jurisdiction did not find new and material evidence existed to reopen the Veteran's claim for service connection for anxiety neurosis, and denied service connection for PTSD. See April 2016 rating decision. In his April 2016 notice of disagreement, the Veteran expressed disagreement with the PTSD decision, but did not mention anxiety or anxiety neurosis. However, in his November 2016 substantive appeal, the Veteran wrote "PTSD/anxiety stems from neck pain. As the issue is being remanded, the Board is withholding a decision on whether the Veteran' PTSD claim should be recharacterized more broadly, and whether new and material evidence is required to adjudicate the Veteran's claim on the merits. See Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (discussing Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) and Clemons v. Shinseki, 23 Vet. App 1 (2009)). 1. Entitlement to service connection for cervical spine disability, to include degenerative joint disease, cervical hypolordosis and foraminal encroachment, is remanded. Upon review of the evidence of record, remand is warranted to schedule an additional examination and obtain additional opinions, and to attempt to obtain outstanding service treatment records. The Veteran attended a VA cervical spine examination in March 2016. The examiner initially provided an opinion in support of the Veteran's claim. See April 1, 2016 examination report. In support of the opinion, the examiner explained "the veteran injured his neck in the service and developed spasm. The original injury resulted in strain. Strain can result in ongoing symptoms that may become persistent over time." The Board notes service treatment records from the time of the alleged 1974 neck injury are not contained in the Veteran's claims file and the examiner did not explain why the "original injury resulted in strain." The Agency of Original Jurisdiction sought an addendum opinion from the examiner, noting the Veteran had not submitted any continuity of treatment for a neck disability since that time. See April 4, 2016 request for physical examination. The examiner provided an addendum opinion, this time opining it was less likely than not that the claimed condition was incurred in or caused by service. In support of this, the examiner stated, "Although it is known that strain can result in ongoing symptoms, in this particular case, there is no evidence that he experienced ongoing symptoms from the service until now. The symptoms that began in 2007 are not related to the symptoms he described in the 1970s." However, a review of the evidence of record reveals the Veteran's symptoms did not begin in 2007, so the examiner's opinion is based on an inaccurate factual premise. In an April 2016 letter from Dr. K.V.C., the Veteran's private chiropractor, Dr. K.V.C. states he has been treating the Veteran since January 2007, but that he was treated previously by Dr. D.S., who has since retired. Furthermore, records received from the Social Security Administration (SSA) reveal the Veteran sought treatment for neck pain and spasms following a car accident in March 1994, but do not specify whether the Veteran had pain or spasms prior to this time. Complete treatment records from the chiropractor and medical doctors identified in the SSA records are not contained in the Veteran's claims file, and the AOJ has not sought them. Additionally, the March 2016 examiner did not address treatment records showing reports of neck muscle spasms between 1977 and 1979, which may or may not be attributable to his reported 1974 neck injury. In a December 2014 statement in support of his claim, the Veteran reported that his "Back condition/Neck" began in 1974 when he fell down stairs at "Abdidene Proving Grounds/Base Hospital during MOS Training." See December 23, 2014 statement. While service treatment records from 1974 are not available, the Veteran reported on an August 1977 report of medical history that he injured his back in 1974 while on active duty in Aberdeen, Maryland. Although treatment records from 1977 through 1979 contain consistent reports of neck spasms, records from this time indicate his muscle spasms were related to a psychiatric disorder, rather than a neck disorder. However, the Veteran did not report his 1974 fall to providers of psychiatric treatment, so to the extent his neck spasms were attributed to a psychiatric disorder, such attributions were based on incomplete information. Even though the March 2016 examiner provided an opinion in support of the Veteran's claim, an additional examination and medical opinion are required to consider possibly positive and negative evidence in the record, and to resolve whether neck spasms in the years after his 1974 injury are attributable to his claimed neck injury. Therefore, remand is warranted to seek service treatment records and for additional examination and opinions. Finally, diagnostic imaging has found the Veteran has degenerative joint disease (arthritis) of his cervical spine. See March 29, 2016 treatment record (impression also includes cervical hypolordosis and mild foraminal encroachment). Therefore, the Board has expanded the scope of the Veteran's claim. 2. Entitlement to service connection for PTSD is remanded. As noted above, the Veteran contends "PTSD/anxiety stems from neck pain". See November 2016 substantive appeal, Because a decision on the remanded issue of entitlement to service connection for a cevical spine disability could significantly impact a decision on the issue of entitlement to service connection for PTSD, the issues are inextricably intertwined and remand of the PTSD claim is required. The matters are REMANDED for the following actions: 1. Obtain the Veteran's complete service treatment records, to include documents pertaining to any service in the Army, New York National Guard and Army Reserve, including but not limited to records from 1974. Document all requests for information as well as all responses in the claims file. If the Agency of Original Jurisdiction concludes service treatment records from the Veteran's period of active duty in 1974 do not exist or that further efforts to obtain those records would be futile, a formal finding should be added to the Veteran's claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for providers of treatment of psychiatric and cervical spine (neck) disabilities, including his former chiropractor Dr. D.S. and treatment providers identified in SSA records (chiropractor R.B., and medical doctors S.R. and A.A.). Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA cervical spine examination. The examiner must review the claims file. The examiner is asked to provide a response to the following: Solicit a history of the Veteran's cervical spine (neck) injuries and symptoms. Identify and list all cervical spine disabilities, to include but not limited to degenerative joint disease, cervical hypolordosis and foraminal encroachment. For each identified disability, is it at least as likely as not (50 percent probability or greater) related to service, including the Veteran's 1974 fall down stairs? (Continued on the next page) Is it at least as likely as not (50 percent probability or greater) that the Veteran's cervical spine degenerative joint disease (arthritis) (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? Provide a rationale to support the opinions. In doing so, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) the neck muscle spasms noted between 1977 and 1979 are related to his 1974 fall down stairs. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gregory T. Shannon, 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.