Citation Nr: 22017555 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-08 562 DATE: March 25, 2022 REMANDED Entitlement to service connection for a neck disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1983 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). It is noted that in the March 2018 rating decision, the RO also denied entitlement to a temporary total evaluation due to surgery (for a cervical spine disability) necessitating convalescence as service connection had not been established for a neck condition. In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 90 days for the submission of supporting evidence. The Board did not subsequently receive any additional evidentiary submissions. As an initial matter, it is noted that the issue on appeal is for entitlement to service connection for a cervical spine disability, and not for a general back or low back disability. In this regard, at the Board hearing, the Veteran appeared to interchangeably refer to in-service treatment for low back symptoms and neck symptoms. See Hearing Transcript at 7 (March 2021). Further, the record shows that service connection has already been denied for lumbar strain also claimed as thoracic, lumbar and sacral pain (degenerative disc disease of the lumbar spine and lower thoracic sprain with Schmorl's Nodes). See e.g., Rating Decision (August 2018). Entitlement to service connection for a neck disability is remanded. The Veteran contends that his cervical spine disability is due to service. He testified that he injured his neck when he fell off an M548 ammo carrier around December 1983 or January 1984. He testified that he was on top of the carrier, wearing full gear and, when he tried to remove a net that was frozen to the carrier, he slipped and fell 18 to 20 feet, landing to the ground on his back. See Hearing Transcript at 3-6 (March 2021). The Veteran's service treatment records (STRs) reflect that, in January 1985, he was seen for low back pain related to lifting heavy materials. There was low back pain on bending forward, laterally, and backwards. The Veteran was assessed with suspected back injury. Additionally, the Veteran was noted to have a history of back pain after he fell from an M548 tracked cargo carrier 3 weeks ago. He did not have radiation of pain to his lower extremities. A physical examination revealed fair active range of motion, pain in the thoracic area (T11 and T12) with flexion and extension. There was moderate point tenderness with some muscle rigidity at the paravertebral muscles along the T11, T12, L1 area. It was noted that a back x-ray was normal and showed good alignment with no obvious vertebral abnormality. The Veteran was diagnosed as having lower thoracic back sprain versus mild spasm. An x-ray was obtained in February 1985 for thoracic and lumbar pain. The Veteran stated he landed on his back when he fell off an M548 3 weeks ago and was not evaluated at the time. He complained of sharp lumbar thoracic pain with flexion. The x-ray showed there were a couple of small Schmorl's nodes in the mid-thoracic vertebral level with an otherwise normal thoracic and lumbosacral spine. On the February 1989 Report of Medical History at separation, the Veteran checked off recurrent back pain. The corresponding February 1989 Report of Medical Examination at separation revealed a normal evaluation of the spine. At the Board hearing, the Veteran testified he was not treated for neck pain during service because he did not realize he had hit his head on the ground as he was wearing a helmet. Rather, he first noticed neck pain shortly after service separation and had neck adjustments by a chiropractor. See Hearing Transcript at 4-8 (March 2021). Post-service VA treatment records reflect complaints of neck pain radiating to the bilateral upper extremities and a December 2012 MRI of the cervical spine showed foraminal stenosis and disc bulges. A VA Neurosurgery Clinic note, dated in February 2013, reflects longstanding back and neck pain since the 1980's. The Veteran reported that his symptoms started in the 1980's when he fell off a service vehicle. Additionally, in 1988, he was lifting tents when he had severe midline neck and upper back pain and was unable to ambulate. An April 2015 MRI showed moderate degenerative joint disease at C5-7. A VA pre-operative report, dated in June 2015, noted a history of neck pain for greater than 20 years, which progressively worsened and radiated to the left arm and right shoulder. The Veteran underwent cervical spine surgery on September 3, 2015, at Rocky Mountain Spine Clinic. To ensure that VA has met its duty to assist, the Board finds that remand is warranted. 38 U.S.C. § 513A; 38 C.F.R. § 30159(c). First, remand is necessary to obtain relevant outstanding VA and private treatment records. At his Board hearing, the Veteran testified that although he first sought treatment from a private chiropractor for cervical spine symptoms shortly after service separation, in 1989, and again from 1992 to 1998, he could not remember the names of the chiropractors/medical providers. However, he testified that beginning in 1998, his medical treatment was provided through Kaiser Permanente. See Hearing Transcript at 8-11 (March 2021). Additionally, he stated that he underwent cervical spine surgery at a private provider, Rocky Mountain Spine Center, referred to him by VA. To date, VA has not received these relevant private medical records. Moreover, the most recent VA treatment records are dated in February 2019, over 3 years ago, and reflect a diagnosis of cervicalgia, status-post surgery in September 2015. It is also noted that, a July 2016 VA treatment record refers to non-VA medical notes and records dated in August 2015 and September 2015 related to the Veteran's cervical spine surgery at Rocky Mountain Spine Center that were available in VISTA Imaging. The July 2016 VA treatment record also indicates that more recent notes would be faxed and scanned when received. See CAPRI (July 2018). These records, however, are not viewable in the claims file and are not otherwise of record. As such, remand is required to obtain updated VA treatment records, upload relevant documents from VISTA Imaging, and for VA to request authorization from the Veteran to obtain relevant private medical records he has identified. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Second, the Board finds that remand is warranted for a VA examination and medical opinion to address whether the Veteran has a neck disability to include to the T11and T12 related to in-service injury or disease. VA's duty to obtain a VA examination and medical opinion is triggered as there is an indication in the record that a current neck disability is related to military service and the threshold for an indication is low. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c). In remanding this matter, the Board makes no finding, 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. Specifically, although it is established that the Veteran sustained a thoracolumbar injury in service based on the STRs that noted complaints/treatment to include those involving the lower thoracic spine nearest the lumbar spine (T-11 and T-12), the Board makes no credibility determination as yet to the Veteran's contention that he sustained a neck injury in service. The Board believes that this requires medical information from a qualified medical professional on whether the Veteran could have (is it reasonable to believe from a medical standpoint) sustained an injury to the neck/cervical spine without knowing so at the time he fell off a military vehicle in January 1985 (or soon thereafter) and without presenting clinical manifestations prior to service separation in April 1989; and addressing whether the Veteran's history of symptoms and clinical picture as to the development of cervical spine disability is consistent with, and at least as likely as not related to, documented injury to the thoracolumbar spine in service from falling off a military vehicle. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his claimed neck/cervical spine disability since service discharge, to include from Kaiser Permanente and Rocky Mountain Spine Clinic. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain all VA treatment records dated from February 2019 to the Present. Obtain all medical records from non-VA providers that have been scanned into the VISTA Imaging system, including all notes and reports related to the Veteran's treatment and surgery for his cervical spine disability at Rocky Mountain Spine Clinic. 3. Schedule the Veteran for a VA examination for his cervical spine disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, and interview of the Veteran, detail the Veteran's reported neck (not back) symptoms, including the nature, onset, progression and severity of any symptoms consistent with the diagnosed cervical spine disability. Caution: Although it is established that the Veteran sustained a thoracolumbar injury in service based on the STRs that noted complaints/treatment to include those involving the lower thoracic spine nearest the lumbar spine (T-11 and T-12), the Board makes no credibility determination as to the Veteran's contention that he sustained a neck injury in service. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician must address the following: (a.) Whether it is reasonable to believe from a medical standpoint that the Veteran sustained an injury to the neck/cervical spine when he fell off the back of a military vehicle in January 1985 without he had injured the neck/cervical spine at the time of the fall or soon thereafter, and without presenting clinical manifestations prior to service separation in April 1989. Explain. (b.) Whether the Veteran's history of symptoms and clinical picture as to the development of cervical spine disability is consistent with the type of injury he sustained to the thoracolumbar spine in service when he fell off the back of a military vehicle. Explain. (c.) If yes to either of the above (a.) or (b.), then address whether any cervical spine disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's theory that his current disability stems from a neck injury he sustained after falling 18-20 feet from the top of an M548 ammo carrier, wearing full gear, and landing on his back. See e.g., Hearing Transcript at 3 (March 2021). (d.) If yes to either of the above (a.) or (b.), then address for arthritis of the cervical spine, whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Consider and expressly address the Veteran's testimony that he first noticed neck symptoms shortly after service discharge (i.e., autumn 1989) and experienced pain since. See e.g., Hearing Transcript at 8-11 (March 2021). NOTE (1): An adequate medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (2): A negative medical opinion may not discount or reject the Veteran's report of injury and/or without providing an explanation. For example, if the Veteran's reports about his symptoms and/or injury do not align with how the currently diagnosed cervical spine disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. NOTE (3): If another etiology is the more likely cause of the cervical spine disability, then identify that etiology and fully explain. 4. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.