Citation Nr: A25008317 Decision Date: 01/30/25 Archive Date: 01/30/25 DOCKET NO. 221205-301545 DATE: January 30, 2025 ISSUES 1. Entitlement to service connection for a lumbosacral strain. 2. Entitlement to service connection for a cervical strain to include as secondary to a lumbosacral strain. REMANDED Entitlement to service connection for a lumbosacral strain is remanded. Entitlement to service connection for a cervical strain to include as secondary to a lumbosacral strain is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1967 to May 1972 and from August 1973 to March 1979. The Veteran died in October 2024. The appellant is the Veteran's properly substituted surviving spouse for the purposes of processing the Veteran's pending appeals to completion. See January 2025 VA Notification Letter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2020 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). Following a March 2021 Higher Level Review (HLR) return due to a duty to assist error, a May 2021 supplemental claim rating decision, and a May 2022 HLR rating decision, the Veteran timely submitted a December 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and selected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2021 supplemental claim rating decision. 38 C.F.R. § 20.301. Any evidence submitted after this AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claims, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claims. 38 C.F.R. § 3.103(c)(2)(ii). Initially, the Board notes that in the May 2021 supplemental claim rating decision, the RO explicitly found that new and relevant evidence had been received pertaining to the issues on appeal. The Board is bound by this prior favorable finding, which was not clearly and unmistakably erroneous. See 38 C.F.R. §§ 3.104(c), 3.2501. 1. Entitlement to service connection for a lumbosacral strain. The Veteran claimed entitlement to service connection for a lumbosacral strain. He contended specifically that the onset of the condition began during active service and that it had progressed and worsened since. See December 2022 VA Form 10182. To that end, in the May 2021 VA Back (Thoracolumbar Spine) Conditions examination the examiner diagnosed the Veteran with a lumbosacral strain and noted that the Veteran reported date of onset was during service, when the Veteran began having lower back pain after a hard landing following repelling down from a Chinook helicopter, and that the condition had progressed/worsened. The examiner opined that it was less likely than not that the Veteran's currently diagnosed lumbosacral strain was incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated that medical records were silent for any chronic back condition during service or in the years after service. The Board finds this May 2021 VA Thoracolumbar Spine examination inadequate because the examiner did not provide a rationale supporting the conclusion generally beyond that there were no records supporting a nexus. It would have been helpful if the examiner had further discussed the Veteran's in-service complaint of backache as noted in his Service Treatment Record (STR). And relatedly, the examiner failed to properly discuss the Veteran's lay statements regarding the circumstances of the onset of his injury and continuance of symptoms since service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (the probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned); see also 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); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Given the above, a remand is required to cure this pre-decisional duty to assist error and obtain an adequate VA medical opinion to determine the nature and etiology of the Veteran's diagnosed lumbosacral strain. 2. Entitlement to service connection for a cervical strain to include as secondary to lumbosacral strain. The Veteran claimed entitlement to service connection for a cervical strain. Specifically, he contended that his cervical spine condition was secondary to his lower back condition. See September 2019 VA Form 526EZ. He also contended that the onset of the condition began during active service and that it had progressed and worsened since. See May 2021 VA Neck (Cervical Spine) Conditions examination. To that end, in the May 2021 VA Cervical Spine examination the examiner diagnosed the Veteran with a cervical strain and noted the Veteran reported that onset was during service, when the Veteran began having neck pain after a hard landing following repelling down from a Chinook helicopter, and that the condition had progressed/worsened. The examiner opined that the Veteran's cervical strain was less likely than not proximately due to or the result of the Veteran's lower back condition. As rationale, the examiner stated that a negative opinion was given for the back condition so no positive secondary opinion could be given for the cervical strain. The Board finds this May 2021 VA Cervical Spine examination inadequate because the examiner failed to properly discuss the Veteran's lay statements regarding onset and continuance of neck pain symptoms since service. As the Veteran stated he suffered neck pain in-service, and the examiner diagnosed him with a cervical strain, a direct service connection opinion was warranted. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994) (opinions that fail to address other possible theories of entitlement are inadequate); see also Barr v. Nicholson, 21 Vet. App. at 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Additionally, the examiner opined that the Veteran's cervical strain was not proximately due to or the result of the Veteran's lumbosacral strain because there was a negative nexus opinion given in regard to the lumbosacral strain. It would have been helpful if the examiner had opined on the relationship, if any, between the two disabilities, whether service-connected or not. Ultimately, if an examination, report does not contain sufficient detail, as is the case here, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes". 38 C.F.R. § 4.2; see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate examination reports). Moreover, because the above remand for a VA medical opinion regarding service connection for a lumbosacral strain would significantly impact a decision on the cervical strain claim as secondary to the lumbosacral strain, the two issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Given the above, a remand is required to cure this pre-decisional duty to assist error and obtain an adequate VA medical opinion to determine the nature and etiology of the Veteran's diagnosed cervical strain, including as it relates to a determination of service connection, or not, of his diagnosed lumbosacral strain. Lastly, and of import regarding both issues discussed above, the Board notes that prior to the present decision on appeal the Veteran had raised the issue of missing records involving another Veteran's records and proper social security number. See February 2021 Statement in Support of Claim. Although the RO requested and eventually received notice from the National Personnel Records Center (NPRC) that "all available personnel and medical records were uploaded", it is unclear whether the RO had concluded that it was reasonably certain any additional federal records sought do not exist or if further efforts to obtain them would be futile, as required by 38 C.F.R. § 3.159 prior to adjudicating the present decision on appeal. A remand is thus required to cure this pre-decisional error. The matters are REMANDED for the following action: 1. Continue efforts to ensure that all of the Veteran's military personnel and medical records have been received until the conclusion has been reached that it is reasonably certain that additional records do not exist or if further efforts to obtain them would be futile. If that conclusion is reached, ensure documentation of such is of record, and notice is provided in accordance with 38 C.F.R. § 3.159. 2. When the above is complete, obtain VA medical opinions by a qualified clinician regarding the nature and etiology of the Veteran's diagnosed lumbosacral strain and cervical strain. After review of the entire claims file, including but not limited to all treatment records as well as this Remand, the examiner is asked to respond to the following: (a) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's lumbosacral strain was incurred in or caused by active service. (b) After an opinion is rendered regarding the nature and etiology of the Veteran's lumbosacral strain, whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's cervical strain was incurred in or caused by active service or was proximately due to, caused by, or aggravated by his lumbosacral strain. Complete and thorough rationales, with citation to relevant evidence and medical studies must be provided for all opinions. (Continued on next page.) If the examiner is unable to provide an opinion(s) on these matters, the examiner must state whether the inability to render a particular opinion is due to a deficiency in the state of general medical knowledge or a deficiency in the record. The examiner is also reminded that any rationale based solely on the lack of documentation will be considered inadequate. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mathew Leahy, 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.