Citation Nr: 22019102 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 94-48 515 DATE: March 31, 2022 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for residuals of a neck injury, to include airway obstruction, dysphonia, dysphagia, and laryngopharyngeal reflux disease, is remanded. Entitlement to service connection for herpes zoster with neurologic deficits is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to June 1980. In August 2020, the Board remanded this case for additional development. The Board finds that there has not been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Although the Board sincerely regrets the additional delay, another remand is necessary to ensure that there is a complete record upon which to decide the claims. 1. Entitlement to service connection for a cervical spine disability is remanded. 2. Entitlement to service connection for residuals of a neck injury, to include airway obstruction, dysphonia, dysphagia, and laryngopharyngeal reflux disease, is remanded. An August 2021 VA examiner indicated that the claimed conditions were both at least as likely as not and less likely than not incurred in or caused by the claimed in-service injury. The examiner stated that "[w]ith regards to the opinion and when chronicity of care as the basis, and there was no evidence [o]f chronic care- although the veteran said he had physical therapy in a short span- in the C file- for his 1996 automobile accident. But the definition of chronic care should be continuous in a chronic manner. Therefore, in spite the arthritis or the preexisting condition might be. The premise of chronic care is absent. Hence, the Cervical strain IS 50 PERCENT LESSER PROBABILITY INCURRED IN OR CAUSED BY, HAD THEIR ONSET IN SERVICE, OR ARE OTHERWISE RELATED TO SERVICE, OR MANIFESTED WITHIN ONE YEAR AFTER SERVICE DURING SERVICE." In the August 2021 report, the examiner expressed agreement with the March and August 2018 medical findings stating that "the 1996 car accident [wa]s less than 50% probability that have caused the neck injury, and whiplash description does not coincide with the CT and MRI results. [W]hereas, the 1978 football injury has 50% probability that it is incurred in the service, the manner of injury is compatibility to the neck injury incurred." In an October 2021 addendum, the examiner stated that "[o]n the basis of chronicity of care" the cervical spine disability and residuals were less likely than not caused by service. In another October 2021 addendum, the examiner stated that "[t]he neck condition [wa]s 50% less probability incurred in service, since the injury in 1978 has been resolved and there is no chronicity of care involved during those times. The physical therapy mentioned by the Veteran and noted in the original opinion was in 1996 for his automobile accident. There are no records to show any continuation of care for the 1978 football injury." The Board finds that the overall opinion is incomplete because the VA examination reports and addendums are confusing and unclear. It is unclear to the Board what conclusion the examiner reached regarding the etiology of the claimed cervical spine and neck injury residuals. In order to be entitled to probative weight, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned explanation connecting the two. Nieves-Rodrigues v. Peake, 22 Vet. App. (2008). Therefore, a VA examination is necessary to determine the nature and etiology of a cervical spine disability and residuals of a neck injury. The Board finds that remand is also necessary to obtain outstanding records. The Board notes that the Veteran testified, and a December 1994 statement asserts, that the Veteran did not seek "traditional medical treatment from the time of his discharge from [service] in 1980 until 1991." However, the record shows that there are potentially outstanding medical records associated with a 1989 workers' compensation claim. Specifically, during the February 1997 Board hearing, the Veteran testified that he worked off and on for the United State Postal Service (USPS) from 1984 to 1986 and permanently from 1986 until retiring on disability in 1992. He testified to an on-the-job knee injury in 1989. However, when asked if the knee injury was the "primary basis for [the] disability classification for the Postal Service," the Veteran stated that cervical spondylosis was part of the disability classification. The Veteran stated at the June 2005 Board hearing, that he received disability from the Office of Workers' Compensation Programs. Further, a March 2018 medical record shows that the Veteran reported that after a May 1989 on-the-job injury, the Veteran was permanently reassigned to light duty which resulted in "accelerated asymmetrical wear and tear of [the] cervical spinal structures over a short period of time...[The Veteran] had a recurrence of disability in June 1989...[The Veteran] worked in light duty assignment for 2 12 years until his disability retirement in 1992." VA Form 21-4142, Authorization and Consent to Release Information, submitted by the Veteran in October 1997, shows that the Veteran limited consent and only authorized VA to obtain February 1986 and February 1988 USPS Medical Examination and Assessment forms. To date, neither the Veteran nor representative have provided information or records regarding any workers' compensation claim. The Board finds that the workers' compensation records are pertinent to the claim and should be obtained and associated with the claims file. Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Therefore, remand is necessary for the AOJ to obtain the workers' compensation records. The record suggests that there may be additional outstanding relevant private medical records. The Veteran submitted a June 1988 Kaiser Permanente medical record showing treatment for back pain and a referral to the Kaiser Permanente orthopedics department for follow up treatment. Although the record shows that the Veteran requested "all records" from Kaiser Permanente in December 2000, the Board finds that the medical records associated with the claims file may be incomplete. As the outstanding records may be relevant to the claims, remand is necessary for the AOJ to obtain the medical records from Kaiser Permanente. 3. Entitlement to service connection for herpes zoster with neurologic deficits is remanded. In December 2015, the Veteran's representative stated that the Veteran was exposed to depleted uranium while in service. The representative stated that an article published by the College of Medicine at Basra University indicated that "a study of the effect of exposure to [depleted uranium] on the Iraqi population produced evidence to show that contact with [depleted uranium] ammunition is associated with the 'frequent occurrence of massive herpes and zoster afflictions.'" The November 2016 Board remand instructed the AOJ to request that the Department of the Army verify whether or not depleted uranium was located at Fort Myer, Virginia on the dates indicated by the Veteran, and whether it is at least as likely as not that the Veteran was exposed to depleted uranium. In a March 2017 statement, the Veteran stated that between April 1977 and June 1977, he was told that his rifle was radioactive. He stated that "after reading an internet article about the DC National Guard Armory being contaminated and some Gulf War veterans experiencing similar symptoms" he believes that he was exposed to depleted uranium which was on the rifle. There is no indication that the AOJ has attempted to verify the Veteran's assertions that he was exposed to depleted uranium. The Veteran's personnel record shows that from February 1977 to January 1978, the Veteran was a Rifleman, in Company D, 1st Battalion, 3rd Infantry stationed at Fort Myer in Virginia. The Board notes that a remand confers on the Veteran the right to compliance with the terms of that remand. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, on remand, the AOJ should attempt to verify the Veteran's claimed exposure. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142, authorizing VA to obtain: (a.) All relevant VA and non-VA medical records, to include medical records from Kaiser Permanente from 1986 to present. All attempts by the AOJ to obtain records should be documented in the claims folder. (b.) A copy of any determination from any state disability program or workers' compensation agency associated with any claims for workers' compensation, and all documents and medical records associated with the determinations. All attempts by the AOJ to obtain records should be documented in the claims folder. 2. Attempt to verify the Veteran's reported exposure to depleted uranium with the appropriate service department entity or entities. 3. Then, only after the above development is completed or after a negative response from all facilities and departments have confirmed that the requested records do not exist, schedule the Veteran for a VA examination to determine the nature and etiology of a cervical spine disability and any residuals of a neck injury. The examiner must review the claims file. The examiner should consider the Veteran's lay statements and testimony. A clearly stated rationale with references to the record, diagnostic tests, and any medical literature or research should be provided. The examiner should: (a.) Opine whether it is at least as likely as not (50 percent or greater probability) that any in-service symptoms caused, contributed to, or aggravated a cervical spine disability or residuals of a neck injury. Explain why or why not. The examiner should discuss (1) the Veteran's assertions regarding a football injury, marching, standing, wearing combat boots with platform soles, and carrying heavy equipment while in service; (2) symptoms and diagnoses in service, to include poor posture, stiff neck, blunt trauma to the neck, neck pain, difficulty swallowing and talking, neurological symptoms, and multiple complaints of sore throat; (3) whether any in-service neck symptoms were acute and transitory; (4) whether any post-service symptoms or diagnosis represented progressions of any cervical spine, neck, or throat symptoms or diagnoses in service; and (5) whether a hematoma seen on 2004 imaging was the residual of the 1978 injury. The examiner should reconcile the opinion with other opinions of record. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that any symptoms of a cervical spine disability or residuals of a neck injury manifested within one year after service. Explain why or why not. The examiner is advised that an opinion based on the absence of medical records without consideration of a Veteran's competent reports is incomplete. Instead, the examiner should discuss affirmative evidence and or medical principles showing that the disability did or did not manifest within one year after service, such as the relevance, if any, of diagnoses and progression of the disabilities nearly 12 years after separation from service. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of herpes zoster. The examiner must review the claims file. The examiner should consider the Veteran's lay statements and testimony. A clearly stated rationale with references to the record, diagnostic tests, and any medical literature or research should be provided. The examiner should: (a.) Opine whether it is at least as likely as not (50 percent or greater probability) that any symptoms in service caused, contributed to, or aggravated herpes zoster. Explain why or why not. The examiner should discuss (1) the Veteran's assertions regarding symptoms of herpes zoster during and since service, to include skin rashes, skin boils, neurological issues, testing, and diagnoses; (2) whether symptoms and diagnoses during and since service, to include radiculopathy or nerve pain in the lower extremities, a boil on the left and right leg, and skin rashes were indicative of herpes zoster; (3) findings and opinions provided by the Veteran's private doctors; and (4) articles submitted from Healthline and the Centers for Disease Control and Prevention (received October 6, 2016). (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that any symptoms of herpes zoster manifested within one year after service. The examiner is advised that an opinion based on the absence of medical records without consideration of a Veteran's competent reports is incomplete. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.