Citation Nr: 22010107 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 17-50 393A DATE: February 22, 2022 REMANDED The issue of service connection for cervicalgia and neck muscle spasm is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Marine Corps from July 1976 to July 1979, in the United States Air Force Air National Guard from November 1998 to February 1999 and from March 2003 to March 2005 with additional training service until 2015. This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in August 2013 and a Statement of the Case (SOC) was issued in November 2014. The Veteran perfected an appeal by submitting a timely VA Form 9 in October 2017. The Veteran and his attorney appeared in an April 2020 hearing. A transcript of that hearing has been associated with the record. At the hearing, the Veteran's attorney requested that the record be kept open for 60 days to allow the appellant to submit additional medical evidence. That 60-day period has expired. 38 C.F.R. § 20.605. The issue of service connection for cervicalgia and neck muscle spasm is remanded. After a review of the evidence, the Board finds that additional evidentiary development is necessary. Service personnel records show that the Veteran continued National Guard training service until retirement in February 2015. His primary duty was as a financial specialist. Service treatment records show treatment for a lower back strain in July 2003 followed by physical therapy and chiropractic care. The strain occurred while attending a leadership training course and attributed to "wellness activities." The records are silent for any cervical symptoms. In an August 2005 VA examination, the Veteran reported this episode but made no mention of cervical symptoms and none were noted by the examiner. A January 2006 VA examination of the lower back was also silent for any neck symptoms. However, in February 2006, a VA chiropractor noted "cervical subluxation" without detailed observations or comments on the cause. In February 2009, the same chiropractor noted that the Veteran was injured in a motor vehicle accident on January 22, 2009 and reported tightness in his neck and back. In July 2011, the RO received the Veteran's claim for service connection for neck pain secondary to his back disability. In July and August 2013, the Veteran was afforded a VA examination for his July 2011 claim of service connection for "severe pain and lost range of motion in neck secondary to [service-connected] back condition." The examiners opined that the Veteran's disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, both stated that there was no evidence of treatment during service. The latter examiner noted that there was insufficient evidence to show that neck and muscle pain was "related to" the chronic lumbosacral straining. Neither addressed the Veteran's current contentions that the neck strain was caused heavy lifting or physical training. As the examiners did not address the Veteran's contentions, the examinations are inadequate. See Moore v. Derwinski, 1 Vet. App. 401, 404 (1991) ("the Board must include in its decisions 'the precise basis for that decision ... [and] the Board's response to the various arguments advanced by the claimant.'" (alterations in original) (quoting Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In a September 2013 letter to his unit, the Veteran reported an injury during physical training on September 13, 2013. After his normal workout routine, he reported ankle and knee pain and soreness and stiffness and limited mobility of his neck. In November 2013, a National Guard medical officer diagnosed myofascitis that existed prior to training and was not aggravated by service and that a line of duty report was not applicable. In an April 2020 Board hearing, the Veteran testified that he injured his neck at the same time as his back which he believed occurred 2001-2003 and underwent neck treatment at the same time as his back. He also testified that between October 13 and October 17, 2004 he incurred a back injury while wearing a flak jacket and other associated protective equipment. He testified that a line of duty determination dated October 19, 2004 was filed at that time. In October 2020, the Veteran submitted a September 2, 2020 letter from a private consulting orthopedic surgeon whose address is in a state distant from the Veteran. The consultant notes statement from the Veteran but it is unclear whether they were part of an electronic interview or from a review of written statements in the file. The consultant summarized some evidence in the file and found that the Veteran's "cervical spine condition" had a "causal nexus to military service with the same mechanisms of injury" such as "axial loading and twisting torsional injuries to the cervical spine." These loading and twisting injuries were associated with a lumbar spine disorder and based generally on carrying heavy equipment. The Board, however, finds the October 2020 medical opinion to be inadequate as his rationale is based on inaccurate factual basis. As discussed by the VA examiners, there is no evidence of "axial loading and twisting torsional injuries to the cervical spine" and the private practitioner also did not address whether the Veteran's cervical spine disability was caused or aggravated by the Veteran's service-connected lumbosacral spine disability. In addition, the practitioner incorrectly stated that the Veteran was granted service connection for "lumbosacral or cervical strain low-grade constant back pain diagnosis chronic strain lumbosacral spine with limitation in range of motion" when the Veteran was only service-connected for his lumbosacral spine and not his cervical strain in September 2005. Even in May 2006, when the rating for the lumbosacral strain was increased to 20 percent, the Veteran was not granted service-connection for his cervical spine. The private examiner also did not discuss any other medical record pertaining to the Veteran's cervical spine outside a note of cervical subluxation that did not explain how carrying equipment caused "axial loading and torsional injuries to the cervical spine." Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran served in the National Guard until 2015 but there are few treatment records in the file including no periodic physical examinations or the October 2004 line of duty investigation for the reported 2004 injury. An additional request for all National Guard personnel and treatment records through 2015 is necessary to decide the claim. The Veteran also testified that he continues to receive chiropractic care from VA and current VA outpatient records are also necessary to decide the claim. The matter is REMANDED for the following action: 1. Make another request for all National Guard service treatment records for the Veteran through his retirement in 2015. Associate any records received with the claims file. 2. Obtain records of VA treatment since July 2020 and associate any records received with the claims file. 3. Schedule the Veteran for an examination by a VA clinician to determine the nature and etiology of the Veteran's cervical spine disability. The examiner should review the virtual file and address whether it is at least as likely as not (50 percent or greater probability) that cervical spine disability was caused or aggravated by service including the 2003 and 2013 reported treatment episodes or any others shown in the records and whether the neck disorder was caused or aggravated by a service-connected disability, to include the Veteran's lumbosacral disability. The examiner is advised that aggravation means any increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the clinician should attempt to quantify the degree of additional disability resulting from the aggravation. The examiner must consider the Veteran's report of injuries due to heavy lifting, wearing protective equipment, or physical training during his National Guard training and consider any injuries incurred while not on training duty. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. The examiner is requested to comment on and note agreement or disagreement with the letter and opinion of the consulting orthopedic surgeon dated September 2, 2020. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.