Citation Nr: 22009348
Decision Date: 02/16/22	Archive Date: 02/16/22

DOCKET NO. 14-13 751
DATE: February 16, 2022

REMANDED

Entitlement to service connection for a neck disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1978 to August 1983.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

In April 2018, the Board denied the Veteran's claim for service connection for cervical radiculopathy, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court).  In a December 2018 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board failed to properly construe the Veteran's claim as including service connection for a neck disability.  The Board recharacterized the claim as shown above and remanded the claim in August 2019 for additional development.  Thereafter, in February 2021, the Board issued a decision that denied the Veteran's claim for service connection for neck disability.  The Veteran appealed denial to the Court, and in an October 2021 Order, pursuant to a JMPR filed by the parties, the Court vacated and remanded the February 2021 decision for compliance with the instructions in the JMPR. The JMPR indicated the claim for service connection for cervical radiculopathy is abandoned.

Entitlement to service connection for a neck disability is remanded.

The parties to the October 2021 JMPR determined that the Board erred when it failed to ensure VA satisfied its duty to assist in obtaining an adequate medical opinion.  Specifically, the parties determined that the August 2020 opinion is inadequate because the examiner impermissibly diminished the value of the Veteran's report that he experienced pain or stiffness in the neck and lumps    and swelling in the neck in a June 1983 report of medical history simply because it is a subjective statement.  The parties also determined that the August 2020 examiner failed to provide an adequate rationale regarding whether the Veteran's in-service injuries at least as likely as not led to his current cervical spine disability.  As such, an addendum opinion is needed.

The matter is REMANDED for the following action:

1. Obtain an addendum opinion on the claim for service connection for a neck disability.  If a new examination is deemed necessary to respond to the question presented, one should be scheduled.

After review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current cervical spine disability is related to service, to include whether his in-service injuries could have eventually led to his current cervical spine disability.   The examiner should explain why or why not.

In providing the opinion, the examiner must address the June 1983 report of medical history which shows the Veteran answered "yes" when asked if he had pain or stiffness in the neck and lumps or swelling in the neck within the past year.  

2. If the claim remains denied, issue a supplemental statement of the case, as appropriate.

 

 

K. A. BANFIELD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Lance, 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.