Citation Nr: 22013560 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 15-35 680 DATE: March 9, 2022 REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. REASONS FOR REMAND The Veteran had active duty with the United States Navy Reserve from August 26, 1991 to September 6, 1991, from May 1, 1996 to September 30, 1996, from November 12, 1996 to February 15, 1997, from August 12, 1998 to September 2, 1999, and from February 24, 2003 to July 31, 2003. A Travel Board hearing was held in August 2016 and a transcript is of record. In May 2021 the Board remanded the issues on appeal. The Board finds that there has not been substantial compliance with the remand instructions and thus another remand is warranted. 1. Entitlement to service connection for a cervical spine disorder The May 2021 Board remand requested that the Veteran be afforded a VA addendum opinion concerning his cervical spine disorder and to address the Veteran's contentions that his cervical spine disability resulted from the documented in-service injury where the Veteran reported that he sustained a severe blow to the head while playing basketball and where he lost consciousness and received sutures for the gash in his head. In the August 2021 VA addendum opinion, the examiner indicated that he reviewed all of the Veteran's records and performed an in-person examination with the Veteran. The examiner listed multiple instances from April 1993 to April 2003 where it was noted that there were no complaints or prior history of neck pain or disorder. The examiner furthered that in May 2004, mild degenerative changes involving the spine were seen. The examiner repeated the statements by the Veteran and then addressed medical literature concerning cervical spondylosis. From the medical research, the examiner noted that cervical spondylosis is extremely common and that it arises from degenerative changes that occur in the spine as people age. He also listed that other factors may increase the risk of developing cervical spondylosis and neck pain including genetics, smoking, occupation, depression or anxiety, and previous injury or trauma to the neck. The examiner then opined that it was less likely than not that the Veteran's current cervical spine disability was incurred in or caused by the claimed in-service injury. The examiner noted that other than the September 1991 service treatment record (STR) there was no other STR with ongoing complaints of neck pain or a neck disorder. The examiner furthered that there also was no complaint or previous histor neck pain noted on examinations conducted between April 1993 to February 2005. The examiner noted that if there were significant changes or severe symptoms associated with a progressively worsening cervical spine disorder attributed to an incident in 1991, he would have anticipated chronic or progressively worsening symptoms or complaints of neck pain on physical examinations, but the record was silent on this. The Board finds that the August 2021 VA examiner is relying solely on the lack of objective medical evidence concerning complaints or diagnosis of a neck disorder found in STRs or post-service treatment records. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment in-service is not adequate. A lack of medical evidence in-service treatment records does not preclude service connection. Buchanan v Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an absolute bar to the service connection claim). The examiner did not consider the Veteran's lay statements that he experienced pain in his back since the 1991 injury but just dealt with it due to the military culture and his desire to get promoted. Moreover, even though the examiner listed that previous injury or trauma to the neck could lead to cervical spondylosis, the examiner did not explain why the injury in 1991 could or could not have caused the cervical spondylosis. As such, the Board finds that the August 2021 VA opinion is inadequate, and a remand is necessary to obtain an adequate opinion. 2. Entitlement to service connection for a left hip disorder As the Veteran contends that his left hip disorder is due to his cervical spondylosis, the development and outcome of the pending cervical spine claim may impact the left hip claim. Thus, they are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Thus, adjudication of the claim must be deferred until after completion of the actions requested below. Additionally, in the January 2022 appellate brief submitted by the Veteran's representative, the argument was raised that the Veteran's left foot disability also contributed to the Veteran's left hip disorder. Thus, on remand this theory of entitlement must be addressed. By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a new appropriate examiner regarding the nature and etiology of the Veteran's cervical spine disorder and left hip disorder. The electronic claims file should be made available for review to the examiner to include a copy of this remand. The examiner must explain the underlying rationale for all opinions expressed. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. If necessary, the Veteran should eb scheduled for a VA examination. (a.) With respect to the cervical spine disorder: The examiner should provide an opinion regarding whether the Veteran has a cervical spine disorder that at least as likely as not, (i.e., a 50 percent probability or greater) had its clinical onset during, or is otherwise associated with his service. The examiner is asked to discuss the likelihood that a cervical spine disorder would have resulted from the documented in-service injury whereby on September 4, 1991, the Veteran was treated for a laceration above the right eye when his eyeglasses were broken while playing basketball. He was transported to a private facility for further care. Another entry shows that the Veteran's sutures were removed on September 8, 1991. The examiner is hereby advised that the Veteran testified in August 2016 that he sustained a severe blow to the head while playing basketball during a period of annual training in September 1991. He reported that he lost consciousness and received sutures for a gash in his head at St. Joseph's Hospital and returned to the Reserve Center. The examiner is also advised that the Veteran reported that he experienced neck pain since the September 1991 injury but did not report the symptoms due to the military culture and his desire to get promotions. Lastly, the examiner is advised that on VA examination in December 2019, the diagnoses were spinal stenosis, cervical fusion and laminectomy, incomplete tetraplegia due to spinal stenosis, and degenerative joint disease. (b.) With respect to the left hip disorder: (Continued on the next page) The examiner should provide an opinion whether the Veteran has a left hip disorder which is at least as likely as not, (i.e., a 50 percent probability or greater) caused by or aggravated by his cervical spine disorder and/or his left foot disorder. The examiner is hereby advised that on VA left hip examination in December 2019, the diagnosis was arthritis of the left hip and partial tetraplegia due to neck stenosis. (c.) For both medical opinions, the examiner is advised that the Veteran is competent to report his symptoms during and since service and that those reports must be acknowledge and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner must consider and discus the lay statements and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for any opinion offered should be provided and must not be basked on the lack of any in-service records of neck pain. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.