Citation Nr: 22016901 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 11-21 702 DATE: March 23, 2022 REMANDED Entitlement to service connection for a cervical spine disability (also claimed as spinal stenosis), to include as secondary to a service-connected degenerative disc disease of the lumbar spine is remanded. Entitlement to service connection for a neurological disability (also claimed as peripheral neuropathy) of the right upper extremity, to include as secondary to a service-connected degenerative disc disease of the lumbar spine and/or a cervical spine disability is remanded. Entitlement to service connection for a neurological disability (also claimed as peripheral neuropathy) of the left upper extremity, to include as secondary to a service-connected degenerative disc disease of the lumbar spine and/or a cervical spine disability is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1981 until her honorable retirement in December 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision(s) by the Nashville, Tennessee Regional Office (RO) of the United States Department of Veterans Affairs (VA). In November 2011, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. In September 2020, the Board notified the Veteran that the VLJ that conducted the November 2011 Board hearing retired, and gave her the opportunity for a new Board hearing. In October 2020, she responded and requested a new Board hearing. In June 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. Previously, the issues on appeal have been remanded in April 2014, November 2016, and March 2018 for further development. In a June 2019 decision, the Board denied the Veteran's claim for entitlement to service connection for a cervical spine disability, to include spinal stenosis and degenerative disc disease (DDD), to include as secondary to service-connected DDD of the lumbar spine. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 Memorandum Decision, the Court remanded the case to the Board for readjudication and to obtain an adequate VA examination. Furthermore, in a June 2019 decision, the Board remanded the Veteran's claim for entitlement to service connection for a neurological disorder of the bilateral upper extremities. Subsequent to, and in accordance with the March 2021 Memorandum Decision, in October 2021, the Board also remanded the issue of entitlement to service connection for a cervical spine disability for further development. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability (also claimed as spinal stenosis), to include as secondary to a service-connected degenerative disc disease of the lumbar spine is remanded. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in November 2021. The November 2021 VA examiner opined that the Veteran's cervical spine disability is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected disability because it is likely related to normal wear and tear and that there has been no aggravation of the Veteran's cervical spine disability, noting that there are no records showing complaints or treatment for neck pain related to the back disability consistent with her lay statements. However, the November 2021 VA examination also notes that the Veteran has described neck pain since her fall during service that also resulted in her service-connected lumbar spine disability. In January 2022, the RO obtained an addendum opinion from the same examiner in which the examiner explained that there is no relationship to the service-connected disabilities and there is no evidence to show that there has been any aggravation caused by the service-connected conditions and there is no objective evidence that the Veteran's currently claimed conditions were not related to normal wear and tear. The Board finds that the November 2021 and January 2022 opinions to be inadequate because they use circular reasoning and use faulty rationale, i.e. no objective evidence that the currently claimed conditions were not related to normal wear and tear. For the above reasons, yet another remand is required. 2. Entitlement to service connection for a neurological disability (also claimed as peripheral neuropathy) of the right upper extremity, to include as secondary to a service-connected degenerative disc disease of the lumbar spine and/or a cervical spine disability is remanded. 3. Entitlement to service connection for a neurological disability (also claimed as peripheral neuropathy) of the left upper extremity, to include as secondary to a service-connected degenerative disc disease of the lumbar spine and/or a cervical spine disability is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for a cervical spine disability (also claimed as spinal stenosis), to include as secondary to a service-connected degenerative disc disease of the lumbar spine could significantly impact a decision on the issues of entitlement to service connection for a neurological disability (also claimed as peripheral neuropathy) of the right upper extremity, to include as secondary to a service-connected degenerative disc disease of the lumbar spine and/or a cervical spine disability and entitlement to service connection for a neurological disability (also claimed as peripheral neuropathy) of the left upper extremity, to include as secondary to a service-connected degenerative disc disease of the lumbar spine and/or a cervical spine disability, the issues are inextricably intertwined. A remand of the claims for entitlement to service connection for a neurological disability (also claimed as peripheral neuropathy) of the right upper extremity, to include as secondary to a service-connected degenerative disc disease of the lumbar spine and/or a cervical spine disability and entitlement to service connection for a neurological disability (also claimed as peripheral neuropathy) of the left upper extremity, to include as secondary to a service-connected degenerative disc disease of the lumbar spine and/or a cervical spine disability is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a different examiner for her cervical spine disability (also claimed as spinal stenosis). The examiner must review the entire claims file, including but not limited to this remand, all relevant statements by the Veteran, and all relevant private and VA treatment records. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) Is the Veteran's cervical spine disability (also claimed as spinal stenosis) at least as likely as not (50 percent probability or greater) related to service, including her reported fall down a flight of stairs in Germany that also injured her lumbar spine? (b) Is the Veteran's cervical spine disability (also claimed as spinal stenosis) at least as likely as not (50 percent probability or greater) proximately due to her service-connected degenerative disc disease of the lumbar spine? (c) Is the Veteran's cervical spine disability (also claimed as spinal stenosis) at least as likely as not (50 percent probability or greater) aggravated, i.e., worsened beyond its natural progression, by her service-connected degenerative disc disease of the lumbar spine? (d) Is it at least as likely as not that the Veteran's cervical spine disability (also claimed as spinal stenosis) at least as likely as not (50 percent probability or greater) (1) began during active service, (2) manifested within one year after retirement from service, or (3) was noted during service with continuity of the same symptomatology since service? In providing the requested opinion(s), the examiner must consider the Veteran's description of her in-service injury and symptoms as well as her post-service symptoms (if any). 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 her current disability, this should be noted. Stated another way, do the Veteran's reports about her 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 examiner must provide a detailed rationale to support all of the opinion(s) provided. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to service connection for a neurological disability (also claimed as peripheral neuropathy) of the right upper extremity, to include as secondary to a service-connected degenerative disc disease of the lumbar spine and/or a cervical spine disability and entitlement to service connection for a neurological disability (also claimed as peripheral neuropathy) of the left upper extremity, to include as secondary to a service-connected degenerative disc disease of the lumbar spine and/or a cervical spine disability. The Board notes that the current VA examination of record for the Veteran's neurological disabilities only provides a secondary nexus opinion concerning the lumbar spine disability. If an additional VA examination is determined necessary pertaining to the claims for entitlement to service connection for a neurological disability (also claimed as peripheral neuropathy) of the right upper extremity, to include as secondary to a service-connected degenerative disc disease of the lumbar spine and/or a cervical spine disability and entitlement to service connection for a neurological disability (also claimed as peripheral neuropathy) of the left upper extremity, to include as secondary to a service-connected degenerative disc disease of the lumbar spine and/or a cervical spine disability; it shall be provided. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, 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.