Citation Nr: 22019463 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 17-55 156 DATE: April 1, 2022 REMANDED An increased disability rating in excess of 10 percent for service-connected cervical strain is remanded. Service connection for any low back condition (claimed as back pain) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1982 to February 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in his October 2017 VA Form 9. However, in a November 2021 correspondence the Veteran withdrew his hearing request. 1. An increased disability rating in excess of 10 percent for service-connected cervical strain is remanded. The Veteran has not been examined in conjunction with this condition since June 2016. As a current disability picture is crucial to an accurate adjudication in this matter, a contemporaneous examination is needed. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Moreover, the Board notes that the 2016 VA examination report does not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016) because the examination report does not contain passive range of motion findings for the Veteran's cervical strain. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The regulation specifically states, "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." Accordingly, remand is required. 2. Service connection for any low back condition (claimed as back pain) is remanded. Remand is required for an adequate VA opinion. 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 received a VA examination in May 2016. The examiner concluded the Veteran did not have a thoracolumbar spine (back) condition. However, x-rays showed spondylolysis of L5-S1 with resultant mild grade 1 anterolisthesis of L5 on S1 as well as spondylotic changes in the lower lumbar spine. The examiner did not provide an etiological opinion or supporting rationale. Thus, this examination is insufficient upon which to determine service connection. In June 2016 VA received an addendum opinion. The examiner opined that the Veteran's lumbar spondylolysis with bilateral joint facet arthropathy was not incurred in or caused by the motor vehicle accident during active service. The examiner reasoned the Veteran's service treatment records (STRs) documented no lumbar spine injuries, but facial injuries due to the motor vehicle accident. Further, the examiner explained there was no mention of a lumbar spine condition in the STRs. The Board finds that this opinion is inadequate and conclusory as the examiner largely based the opinion on the lack of an in-service diagnosis of a lumbar spine condition. The Board notes that an in-service diagnosis is not required to establish service connection. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Additionally, the examiner provided no rationale for the Veteran's lumbar spine disabilities and the opinion is not supported by a reasoned medical explanation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Accordingly, remand is required. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disability on appeal. 2. Following the receipt of any outstanding records schedule the Veteran for a VA examination by an appropriate clinician to assess the current severity of the service-connected cervical strain. The Veteran's entire claims file, to include a copy of this remand, should be provided to the examiner. After review of the claims file, the examiner is asked to opine as to: (a.) For each range of motion testing conducted for the Veteran's cervical strain, the examiner must state where in the range of motion the Veteran reports that he begins to experience pain. If the examiner is unable to conduct any of the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examination report must also contain passive range of motion findings for the Veteran's cervical strain. (b.) The examiner should also state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In doing so, the examiner should elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information. (c.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Following the receipt of any outstanding records schedule the Veteran for a VA examination by an appropriate clinician to obtain an opinion regarding the nature and etiology of any diagnosed lumbar spine disability. The Veteran's entire claims file, to include a copy of this remand, should be provided to the examiner. After review of the claims file, the examiner is asked to opine as to: (a) Identify (by diagnosis) all back disabilities. (b) Whether it is at least as likely as not (50 percent or greater probability) that each diagnosed lumbar spine disability had onset in, or is otherwise related to active service, including the 1982 motor vehicle accident. In addressing the above, the examiner must consider and discuss all pertinent medical and lay evidence of record, to include competent, lay assertions as to the nature, onset, and continuity of symptoms. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If lay assertions in any regard are discounted, the examiner should clearly state, and explain why. The examiner should not discount the Veteran's lay statements or rely on an absence of medical evidence in the record to support his or her conclusions. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 4. All opinions must include a detailed rationale. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.