Citation Nr: 22026751 Decision Date: 05/05/22 Archive Date: 05/05/22 DOCKET NO. 19-01 698 DATE: May 5, 2022 REMANDED Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from September 2007 to September 2012. This matter was previously before the Board in December 2021 but was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the AOJ was required to obtain an addendum medical opinion regarding the etiology of the Veteran's current cervical spine disability. An addendum medical opinion was obtained and associated with the Veteran's claims in March 2022. For reasons discussed below, the March 2022 medical opinion is inadequate for purposes of determining service connection. Accordingly, the Board finds there has not been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2021, the Veteran testified at a Board hearing in front of a Veterans Law Judge (VLJ). A transcript of that hearing is of record. 1. Entitlement to service connection for a cervical spine disability. The Veteran claims entitlement to service connection for a cervical spine disability. Specifically, the Veteran contends that his current cervical spine disability was incurred during or caused by his period of active service. In a September 2021 Board hearing, the Veteran testified he injured his neck in 2009, during his period of active service, when his helmet was caught on an aircraft wing. The Board notes that the Veteran's service treatment records do note a diagnosis of nonallopathic lesions of the cervical spine. In a December 2021 Board remand, the AOJ was instructed to obtain an addendum opinion regarding the etiology of the Veteran's cervical spine disability. The Board remand noted: Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: At the September 2021 Board hearing, the Veteran reported that an in-service injury in 2009 while working on an aircraft carrier when his helmet or cranial got caught on a wing and incidentally jerked his head back. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's neck disability (pain plus functional impairment, even if since resolved) began during active service or is related to an incident of service, to include consideration of the Veteran's reported in-service neck injury as well as documented complaints and treatment for neck pain and assessments of nonallopathic lesions cervical in August 2009 and September 2009 and neck strain in September 2011. In a March 2022 medical opinion, the examiner stated it was less likely than not that the Veteran's cervical spine disability was incurred during or caused by his period of active service. The examiner reasoned, "The records initially did not support [the Veteran's] claim of the neck pain as being service related, records reveal documentation of complete resolution of symptoms in his exit exam and initial H and P at Bay Pines negative for [complaint of] neck pain." When discussing the evidence of record, the examiner stated: The Veteran sustained a flexion injury (sprain) in [June 2011] that resolved. X-rays were negative and there are no [service treatment records] indicating a subsequent chronic neck condition. The Veteran's musculoskeletal ROS on his separation examination was negative for neck complaints. His initial Bay Pines VAMC H&P in [January 2015] was negative for neck complaints. He now experiences decreased [range of motion] on exam. Based on the requirements of the December 2021 Board remand, the Board finds the March 2022 addendum medical opinion to be inadequate. The opinion fails to address the Veteran's September 2021 testimony that he injured his neck during active service in 2009. The opinion also fails to address the August 2009 and September 2009 diagnoses of nonallopathic lesions on the Veteran's cervical spine. A medical opinion is inadequate if the examiner's rationale fails to account for pertinent evidence, to include competent lay statements describing symptoms of the disability at issue. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331,1335 (Fed. Cir. 2006) (noting that "lay evidence is one type of evidence that must be considered, if submitted, when a veteran's claim seeks disability benefits"). Finally, the medical opinion appears to rely almost solely on the lack of documented diagnosis of cervical spine disability during the Veteran's active service and when he began treatment at Bay Pines VAMC. The Board notes that the absence of treatment records cannot be the sole basis for the denial of a service connection claim. See Dalton v. Peake, 21 Vet. App. 23 (2007) (a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination)). When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that an additional addendum medical opinion regarding the etiology of the Veteran's current cervical spine disability is necessary to comprehensively evaluate his claim for service connection. The matters are REMANDED for the following action: 1. Provide the Veteran's claims file to a qualified clinician to provide an opinion for the Veteran's cervical spine disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether the Veteran's cervical spine disability began during active service, or is related to an incident of service, to include consideration of the Veteran's reported in-service neck injury as well as documented complaints and treatment for neck pain and assessments of nonallopathic lesions cervical in August 2009 and September 2009 and neck strain in September 2011. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: At the September 2021 Board hearing, the Veteran reported that an in-service injury in 2009 while working on an aircraft carrier when his helmet or cranial got caught on a wing and incidentally jerked his head back. The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the clinician must state this and provide a rationale for such conclusion. 2. After all completed development, the AOJ should then readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.