Citation Nr: 22018898 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 18-26 974 DATE: March 30, 2022 REMANDED Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1970 to July 1971, including service in Vietnam during the Vietnam War era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter first appeared before the Board in August 2018 at which time the issue was remanded for further development to include obtaining adequate opinions and rationale including those addressing all raised theories of entitlement. Having since conducted the further development, the matter has returned. Entitlement to service connection for a cervical spine disability is remanded. At the outset, the Board finds that remand is warranted to address all the theories of service connection raised by the Veteran, reconcile the conflicting evidence of record, and directly discuss the complete evidence of record, including the lay statements of record. Illustratively, the medical opinions of record do not adequately consider evidence reflecting pertinent symptoms during the Veteran's active duty service. A January 1971 service treatment record (STR) emergency visit reflects the Veteran's complaint of recurrent headaches and history of trauma to right skull. A May 1971 STR reflects note of a 100-degree temperature and swelling of left side of face and neck. The Veteran's July 1971 report of medical history reflects that he reported conditions including swollen or painful joints, frequent or severe headache, dizziness or fainting spells, eye trouble, ear, nose, or throat trouble, history of head injury, pain or pressure in chest, palpitations or pounding heart, cramps in legs, and recurrent back pain. A January 2017 VA negative nexus opinion is of record. In a June 2017 private opinion, Dr. F.F. opined that the Veteran has urinary incontinence, erectile dysfunction and dysthymic disorder, conditions that are related to adenocarcinoma prostate and that "are highly contributing directly and accelerating his negative neck conditions." Dr. F.F. stated that, as such, the Veteran's neck condition disability claim is also related to the service-connected disability. In October 2017, another private doctor, N.V., stated that she concurred with Dr. F.F.'s opinion and opined that the Veteran's cervical spine condition directly relates to his service-connected residuals of adenocarcinoma prostate. As noted in the August 2018 Board remand, the private medical opinions are not sufficient, alone, upon which to grant the claim due to a lack of sufficient supporting medical explanation and rationale. See Stefl v. Nicholson, 21 Vet App. 120, 124 (2007) ("[A] medical opinion.... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board finds that the private opinions of record do not contain sufficient rationale that leads to a clear conclusion discussing supporting data and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. Id. The Veteran underwent a VA neck (cervical spine) examination in April 2021. The examiner diagnosed the Veteran with cervical strain. The examiner opined that the Veteran's cervical strain was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that the Veteran's military records do not reveal information on an injury, event or illness suffered during military service to the cervical spine or neck, nor treatment or medications concerning said alleged condition. The examiner concluded that the STRs are silent for a cervical spine injury, event or illness during service and the Veteran's medical records do not support that the currently diagnosed cervical strain related to the Veteran's claimed cervical spine disability is at least as likely as not incurred in or caused by the cervical spine/military service. The examiner opined, however, that the condition is at least as likely as not proximately due to or the result of the Veteran's service-connected conditions of residuals from prostate cancer, erectile dysfunction and dysthymic disorder. Specifically, the examiner stated These [service-connected] conditions produce oxidative stress in this Veteran highly related with the stiffness in the cervical muscles and loss of the normal curvature of the cervical spine, as shown in the reported x-rays and according to the patient's complaint. In conclusion, the claimed condition is at least as likely as not (50 percent or greater probability) proximately due to the service-connected condition. However, in an August 2021 VA addendum opinion, the same examiner opined that the Veteran's cervical strain condition is less likely than not proximately due to or the result of the Veteran's service-connected conditions of residuals from prostate cancer, erectile dysfunction, and dysthymic disorder. The examiner rationalized that Cervical strain is an acute symptomatic neck condition that envelops several layers of the neck wrapping that remains, which is involved in movements, its cause is sudden and precipitous changes in movement in this Veteran is not observed. The examiner further found [T]here is no information in the Veteran's military medical record about an injury that has caused such a backward movement in the neck capable of producing severe spasm in the sternocleidomastoid muscles as well as the trapezius and ligaments with consequent cervical support as a treatment, so it is not related to the Veteran's service-connected conditions of residuals from prostate cancer, erectile dysfunction, and dysthymic disorder. The examiner then affirmed the January 2017 opinion which expressed that the Veteran's condition is not related with the service-connected conditions of residuals from prostate cancer, erectile dysfunction, and dysthymic disorder. The Board finds the conflicting August 2021 VA opinions and rationale to be inadequate for multiple reasons. For the opinion on secondary service connection (the claimed disability being caused or aggravated by a service-connected disability(ies), the VA examiner gave two completely different opinions and rationales but did not explain the reason for this change. Thus, the Board is at a lost for sufficient medical rationale and reasoning for either opinion. Moreover, the VA opinions do not reflect consideration of all pertinent failed to discuss all pertinent lay and medical evidence of record. With regard to direct service connection, the VA examiner did not directly discuss the Veteran's complaint of swelling of the face and neck in May 1971 and head trauma as reported in the January 1971 STR. In each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154. Hence, the Board finds that these opinions that do not discuss such evidence to be inadequate. Further, in the April 2021 VA opinion regarding direct service connection, the examiner found that the Veteran's military records do not reveal treatment or medications regarding the condition. However, the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). Moreover, opinions based on inaccurate facts, particularly when the inaccurate facts are directly related to the basis of the opinion, have no probative value. Nieves-Rodriguez, 22 Vet. App. at 301. As such, the April 2021 direct service connection, the only direct service connection opinion of record, is therefore inadequate and afforded no probative value. Id. As such, the Board finds that remand is warranted to obtain an adequate opinion. The matters are REMANDED for the following action: Forward the claims file to a physician with sufficient expertise, such as an orthopedic surgeon, to obtain an addendum opinion to determine the etiology of the Veteran's cervical spine disability. The necessity of an in-person examination is left to the discretion of the examiner. The examiner(s) must review pertinent documents in the Veteran's claims file in conjunction with the examinations and to note review of the Veteran's claims file. All tests and studies deemed necessary by the examiner(s) should be performed. (A) With regard to the cervical spine disability, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's cervical spine disability had its onset in service or is otherwise etiologically related to active service, including his January 1971 report of recurrent headaches and history of trauma to right skull, a May 1971 STR note of the 100-degree temperature and swelling of left side of face and neck, and the July 1971 report of medical history noting conditions including swollen or painful joints, frequent or severe headache, dizziness or fainting spells, eye trouble, ear, nose, or throat trouble, history of head injury, pain or pressure in chest, palpitations or pounding heart, cramps in legs, and recurrent back pain. (B) With regard to the cervical spine disability, the examiner should provide an opinion as to whether it is at least as likely as not that the cervical spine disability is proximately due to or aggravated by a service-connected disability. The examiner is asked to directly address the conflicting evidence of record and reconcile such conflicting evidence of record, including the June and October 2017 private opinions and the April 2021 VA opinion, with the January 2017 and August 2021 VA opinions. The examiner is advised that the Veteran is competent to report symptoms and that his lay observations must be considered in formulating the requested opinions. If the Veteran's reported history is discounted, the examiner must provide a reason for doing so. The Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. A complete rationale for all opinions provided is required. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.