Citation Nr: 22008089 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 15-33 149 DATE: February 11, 2022 REMANDED Entitlement to service connection for cervical spine radiculopathy, to include cervical disc disease with radiculopathy, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Marine Corps from October 1987 to October 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 Regional Office (RO) rating decision, in which the RO denied entitlement to service connection for cervical radiculopathy. The Veteran's notice of disagreement (NOD) was received in May 2012. The RO issued the statement of the case (SOC) in July 2015, and the Veteran's VA Form 9, substantive appeal was received in September 2015. In October 2019, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge (sitting in Washington, D.C.). A transcript of that proceeding is of record. In January 2020, the Board remanded the case for further development and adjudicative action. In a December 2020 decision, the Board denied the Veteran's claim for service connection for cervical spine radiculopathy, to include cervical disc disease with radiculopathy. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a September 2021 Court Order granting a Joint Motion for Remand (JMR), the Court vacated the Board's December 2020 decision and remanded the case for further development in compliance with the directives specified in the JMR. Entitlement to service connection for cervical spine radiculopathy, to include cervical disc disease with radiculopathy The Veteran contends that he has a cervical spine disability that is related to service. Specifically, he reports that his cervical spine disability is related to a cervical strain suffered during service when a bouncer at a night club put him into a chokehold during a fight and bent him backwards, causing neck pain. Further, he reports that he was treated for neck pain radiating down the left shoulder and arm with numbness and tingling. See VA Form 9 dated September 2015. The Veteran was most recently afforded a VA examination for the claim in February 2020. In support of its December 2020 decision denying the claim, the Board relied on the February 2020 examiner's opinion, which was against finding that the cervical spine radiculopathy was related to service. According to the September 2021 JMR, the February 2020 opinion was inadequate. More specifically, the JMR found the examiner's statement that, "[t]here was no report of complaints or treatment for cervical spine after 1990" was contradictory to lay and medical evidence; and, that the examiner failed to reconcile such evidence with her findings. The JMR further pointed out that the record contains medical and lay evidence indicating the Veteran's reports of ongoing neck and lumbar pain since 1990, citing to a December 10, 2010, PM&RS Consult Response noting "neck pain and lumbar pain since 1990;" the October 2019 Transcript of Hearing indicating Appellant's testimony that he has had "ongoing issues since [1990], and left untreated for a while, but it's been progressively worse;"; and, the February 2020 examination indicating Appellant's report that "I injured my neck in the military and I continued to have neck pain after that incident." On this basis, the JMR found that the February 2020 opinion is inadequate, and it directed the Board, upon remand, to obtain another VA opinion regarding the etiology of Appellant's cervical spine radiculopathy and disc disease that addresses the foregoing evidence. The JMR specifically pointed out that pursuant to 38 U.S.C. § 5103A(a), the Secretary must make reasonable efforts to assist a claimant in obtaining a medical opinion when such an opinion is necessary to substantiate the claimant's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). A medical examination is "adequate" when it is based upon consideration of the veteran's prior medical history and describes the disability such that the Board's evaluation is fully formed. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Such an examination must contain "not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Although the examiner need not explicitly lay out the examiner's journey from facts to a conclusion, Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012), the explanation should be sufficient for the Board to weigh it against other, potentially contrary opinions. Stefl, 21 Vet. App. at 124. Notably, however, upon careful review of the February 2020 examination report, it is reasonable to infer that the examiner's statement that, "[t]here was no report of complaints or treatment for cervical spine after 1990" is referring only to service treatment records. That would make sense, given that the examiner subsequently cites to post-service medical evidence showing that the Veteran was reporting neck pain since service. Furthermore, the February 2020 examiner fully acknowledged the Veteran's lay statements, yet despite those statements, found that the current cervical spine disability was unrelated to the in-service injury, irrespective of whether the Veteran had pain since service. The JMR also pointed out that the February 2020 VA opinion did not discuss the March 2012 private opinion, but should have, because both opinions' findings regarding the length of the Appellant's cervical strain are in direct contradiction. More specifically, the JMR noted the following from the February 2020 VA opinion: According to the evidence[-]based information in the medical literature, 'Low back pain and cervical strain are symptoms due to a mechanical in nature or injury. Often times[,] the neck pain with is called cervical strain are acute or short term and lasts few days or few weeks and resolves on its own with no residual loss of function. This is often mechanical in nature'. The diagnosis of cervical strain is made on the basis of clinical presentation. Imaging is unnecessary. Neck pain and stiffness may last for up to six weeks. Then, the JMR noted the following from the private March 2012 opinion: [C]ervical radiculopathy and cervical strains and do continue and as time goes by, most notably will worsen. The reason for this is that as the cervical discs that are herniated degenerate, the neural foramina main opener being supported by well-hydrated non-herniated discs, will close up. The reason for this is that as the discs do become degenerated secondary to the disc herniation, there is an accelerated problem of the cervical radiculopathy which continues because of concomitant stenosis which forms in the neural foramina secondary to the above problems. Mechanically this is [a] well-known phenomena which occurs in people who do have injuries as the disc become herniated and because of neural foramina do become more stenosed, the nerves which transverse that area are impinged upon. The JMR concluded, based on the above two paragraphs, that the March 2012 private examiner's findings contradict the February 2020 VA examiner's finding that "cervical strains are acute or short term and lasts a few days or weeks, resolving on their own with no residual loss of function," and yet, the February 2020 VA examiner did not address this distinction. Notably, however, a careful reading of the March 2012 private opinion's finding that cervical radiculopathy and cervical strains do continue and will worsen as time goes by, is based on a presupposition that the strain was caused by a herniated disc, and this is not in direct contradiction to what the VA examiner stated regarding the nature of cervical strains. In other words, the rationale for the March 2012 opinion is based on a finding of herniated disc, and there was no such finding until after the 2003 accident. Moreover, if a disc herniation is the source of the neck pain and radiculopathy, then would it not be counterintuitive to refer to the disability as a "strain?" By contrast, the VA opinion's findings on the acute nature of cervical strains does not suggest that the Veteran had a herniated disc during service or at the time of discharge. Nevertheless, the JMR specifically directs the Board to obtain another medical opinion. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA spine examination, with an orthopedist if possible, to determine whether the Veteran has a current disability of cervical spine radiculopathy, to include cervical disc disease with radiculopathy, that is at least as likely as not (a 50 percent or higher likelihood) related to an in-service injury or disease. In so opining, the examiner should address the Veteran's lay statements that he has experienced neck pain ever since an in-service injury. The examiner should consider the Veteran's relevant statements made during service, including at medical examinations; statements made after service, including in the course of receiving medical treatment; and his statements noted in the March 2012 private medical opinion and the February 2020 VA examiner's opinion. The examiner is also asked to reconcile any conflicting medical evidence in the record concerning the onset and continuity of the Veteran's cervical spine disability. If the examiner finds that the record contains conflicting medical evidence, the examiner should explain why the evidence conflicts, and discuss why certain medical evidence is more compelling than other medical evidence (if that is the case). In providing the requested opinion, the clinician should consider the Veteran's in-service and post-service 2003 injuries and symptoms in service and thereafter, as well as the nature of his in-service and post-service injuries and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. A thorough rationale must accompany all opinions formed and conclusions drawn. Importantly, by remanding this matter, no finding is made, 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. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.