Citation Nr: 25005646 Decision Date: 04/24/25 Archive Date: 04/24/25 DOCKET NO. 15-32 316 DATE: April 24, 2025 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 Navy from July 1973 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in March 2019. Subsequently, in July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Thereafter, the Board remanded this matter in November 2021 and July 2022 to complete additional development. Subsequently, in December 2022, the Board denied entitlement to service connection for a cervical spine disability. The Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (CAVC). In an August 2023 order, the CAVC granted a July 2023 Joint Motion for Remand (JMR) filed by the parties (the Veteran and the Secretary of VA), vacated the December 2022 Board decision that denied entitlement to service connection for a cervical spine disability, and remanded the matter back to the Board for readjudication consistent with the terms of the July 2023 JMR. Thereafter, in September 2023 and September 2024, the Board remanded this matter for additional development. After completing the additional development, the RO issued a February 2025 Supplemental Statement of the Case (SSOC) denying entitlement to service connection for a cervical spine disability, and returned the matter to the Board for appellate review. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall). The Board finds that there is no substantial compliance with the September 2024 Board's remand directives. Thus, another remand is warranted to complete additional development. Entitlement to service connection for a cervical spine disability is remanded. The Veteran asserts that his cervical spine disability is directly related to his in-service injury and/or secondary to the service-connected left arm and shoulder disabilities. At the July 2021 Board hearing, the Veteran testified that he suffered injuries in a motorcycle accident in 1974 while serving in Italy and had two surgeries for the left arm and shoulder fractures. The Veteran asserted that he had neck pain from the beginning and complained about this issue within a year or two after separation from the service. The Veteran's representative argued that the injury at a young age does not cause immediate arthritis, it takes decades before the arthritis develops. The representative also referred to an article that was cited in a March 2021 Appellate Brief, noting that shoulder pathology may cause neck pain. The Veteran asserted that he had been compensating due to left arm conditions, which also impacted his cervical spine condition. In the July 2023 JMR, the parties agreed that in the December 2022 decision, the Board did not address an April 2005 VA neurology consult, where the Veteran reported cervical pain. Also, the Board did not address the Veteran's reports at the July 2021 Board hearing that he had neck pain "right from the beginning" and that he first complained about his cervical spine issues "within a year or two" of service. The parties also agreed that the August 2022 VA medical opinion is inadequate because the examiner failed to address the Veteran's reports at the July 2021 Board hearing that he had neck pain "right from the beginning" and that he first complained about his cervical spine issues "within a year or two" of service. Therefore, the parties agreed that the Board must ensure VA obtains a new or addendum medical opinion addressing these lay statements. Pursuant to the terms of the July 2023 JMR, in September 2023, the Board remanded the matter to obtain a new medical opinion on the etiology and nature of the Veteran's diagnosed cervical spine disability. The RO obtained medical opinions in November 2023 and May 2024. However, in September 2024, the Board remanded the matter again after finding the November 2023 and May 2024 VA medical opinions inadequate because in the May 2024 addendum opinion, the examiner noted that the Veteran's lay statements were considered, but the examiner did not specifically address the Veteran's contentions but instead indicated that they were categorically considered. Therefore, the Board remanded the matter to obtain a new medical opinion in which the examiner addresses the Veteran's contentions specifically and not categorically. The Board also found the VA medical opinion inadequate on secondary service connection because the examiner indicated that the Veteran's cervical spine disability was not due to overcompensating from one side to the other. However, the examiner did not explain why. Pursuant to the September 2024 Board remand, in October 2024, the RO obtained a VA medical opinion on the nature and etiology of the Veteran's cervical spine disability, in which the examiner opined that the Veteran's claimed condition was less likely than not (likelihood is less than approximately balanced or nearly equal) incurred in or caused by the claimed in-service injury, event, or illness, or is secondary to a service-connected condition. However, the RO found the October 2024 VA medical opinion inadequate, and it did not comply with the Board's remand directives. Therefore, the RO obtained another medical opinion in February 2025. The RO specifically requested the examiner to discuss (i) whether it is as likely as not that the Veteran would have had received treatment prior to the documented treatment in the 2000s if the Veteran claimed cervical spine injury occurred during the Veteran's active military service, as described by the Veteran; (ii) whether the current severity of the Veteran's cervical spine condition would be as likely as not consistent with the Veteran's current severity, if the Veteran injured his cervical spine during the active military service, as described by the Veteran, and the mere statement that it is a naturally occurring phenomena does not answer this question; (iii) all evidence, including April 2005 VA Neurology Consult, September 2014 VA examination, May 2014 email correspondence, and August 2024 Third Party Correspondence; (iv) the Veteran's contentions that he has manipulated his body into various positions due to his service-connected disabilities, which impacted his cervical spine, because the Veteran stated he overcompensated with his movements by working harder on his right side which resulted in further damage to his spine due to his service- connected disabilities. In response to the above requested questions, in the February 2025 VA addendum medical opinion, the examiner stated the Veteran would have sought the evaluation and treatment for a neck injury, sustained during service prior to 2000. It is medically unlikely that an individual could have endured a span of 30 years with an ongoing neck condition, given the likely natural progression and symptoms. Any condition such as a neck injury that would pre-disposed someone to degenerative disc disease/spinal stenosis/radiculopathy would have been self-evident and the theory of delayed onset of the general changes would not expand 30 years. A severe neck injury, especially one involving significant force that can disrupt disc integrity and potentially lead to early degeneration can occur. If this occurred the Veteran would have sought medical care for this type of injury prior to 2000. The examiner also stated that the Veteran's cervical spine condition would be less likely than not consistent with the Veteran's current severity. Although the Veteran stated that he had neck problems, which were related to his service, there was no evidence of a neck injury during service specifically related to his motorcycle accident or at the time of discharge from the military. Without evidence of an injury during service and not having any evidence of neck pain for 30 years, it can be concluded that these findings are related to degenerative spine disease, which would be expected. Regarding the evidence of record, the examiner merely stated that he reviewed the April 2005 VA neurology consultation, September 2014 VA examination, May 2014 email correspondence, and August 2024 for third-party correspondence. However, the examiner did not elaborate the findings and assertions in these records. Regarding secondary service connection, the examiner stated the Veteran's degenerative cervical disc disease/spinal stenosis/radiculopathy are related to degenerative disc disease likely due to normal wear and tear over a lifetime with associated disc desiccation. The examiner explained that 50% of adults over the age of 40 and 85% of adults over the age of 60 show evidence of disc degeneration. This includes conditions involving the lumbar spine, shoulders, arms, and compensating for the left arm injury in service. Gate Accommodations, postural accommodations, overcompensation, and use accommodations for other joints do not cause degenerative disc disease. The Board finds the February 2025 VA medical opinion inadequate specifically for secondary service connection because the examiner did not provide an opinion as to whether the Veteran's service-connected conditions aggravated his cervical spine disability. The examiner merely stated that the Veteran's service-connected disabilities, including overcompensation of one side did not cause the cervical spine disability. In order to determine whether there was an aggravation of a non-service-connected disability by a service-connected disability, the question is not whether the non-service-connected disability was caused by the service-connected disability. Rather the question is whether a service-connected disability aggravated an existing non-service-connected disability. Furthermore, the Board notes that in an October 2024 statement in support of claim, the Veteran asserted that during the October 2024 VA examination, he found out from the examiner that they did not have any treatments at VA facilities for the period before 1998. The Veteran stated that he had been complaining about neck pain since discharge in 1977, and he had been examined and treated frequently at the Syracuse and Rome VA Clinic since discharge. In this regard, the Board notes that under 38 C.F.R. § 3.159(c)(2), VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency and will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. The Board notes that the RO made couple of requests for treatment records for the period 1977 to 1998 from Syracuse VA Clinic in October and December 2024. The records provided were from 1998 and onwards. The RO did not make further efforts to obtain these records or prepare a formal finding of unavailability of records, if it is determined that further efforts to obtain the records would be futile. Furthermore, the RO did not request the records from Rome VA Clinic. The Board notes that these records are very important because the VA examiners have provided negative nexus opinion because they found no treatment record for a cervical spine condition prior to 2000s. Accordingly, the Board finds that a remand is warranted to obtain a new medical opinion on the nature and etiology of the Veteran's diagnosed cervical spine disability, and to request VA treatment records for the period 1977 to 1998 from Syracuse and Rome VA Clinics. The RO should make as many requests as necessary to obtain these treatment records. The RO should prepare a formal finding of unavailability of records, if it is determined that further efforts to obtain the records would be futile. The matter is REMANDED for the following action: 1. Request VA treatment records for the period 1977 to 1998 from Syracuse and Rome VA Clinics. The RO should make as many requests as are necessary to obtain these treatment records, and associate these records with the Veteran's claims file. If these records are unavailable, the RO should prepare a formal finding of unavailability of records under 38 C.F.R. § 3.159(c)(2), which dictates that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency and will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 2. Thereafter, obtain a new medical opinion on the nature and etiology of the Veteran's diagnosed cervical spine disability, including cervical spondylosis, spinal stenosis, and degenerative arthritis of the cervical spine. After reviewing the claims file, and copies of this remand and the July 2023 JMR, the examiner should address the following: (a) Provide an opinion as to 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 diagnosed cervical spine disability, to include cervical spondylosis, spinal stenosis, and degenerative arthritis of the cervical spine, had its onset during his period of active service, or related to an in-service injury, event, or disease, to include the November 1974 in-service motorcycle accident in which the Veteran suffered fractures in left arm, shoulder, and ribs; and the June 1977 in-service fall where the Veteran fell backwards out of chair striking skull against the wall. The examiner is advised to address if there is a possibility of a delayed onset of cervical spine arthritis due to the in-service accidents. (b) Provide an opinion as to whether the Veteran's diagnosed cervical spine disability is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) (i) due to, caused by, or resulted from, or (ii) aggravated by the service-connected disabilities, including lumbar spine condition, bilateral shoulder conditions, and bilateral arm conditions; and compensating one side after the left arm in-service injury. In providing the above requested opinion on aggravation of the Veteran's cervical spine disability, the examiner should opine as to whether any of the Veteran's service-connected disabilities caused any "incremental increase, regardless of its permanence" in his non-service-connected cervical spine disability. The examiner should specifically address the Veteran's reports at the July 2021 Board hearing that he had neck pain "right from the beginning" and that he first complained about his cervical spine issues "within a year or two" of separation from service. Also, in providing the above requested opinions, besides reviewing the claims file in general, the examiner should specifically review and address the medical and lay evidence associated with the claims file with entries dated: (i) 03/18/2014, titled "STR-Medical" including pages 8, 9, and 26 of 70, which contain the February 1976 in-service surgery and treatment record of the Veteran's left arm, during which the plates were removed from the Veteran's left arm and forearm after the November 1974 motorcycle accident; (ii) 03/18/2014, titled "STR -Medical" page 12 of 73 that contains a June 1977 service treatment record noting that the Veteran fell backwards out of chair striking skull against the wall; (iii) 09/02/2008, titled "Medical Treatment Record -Government Facility" page 29 of 46 that contains an April 2005 VA Neurology Consult, where the Veteran reported cervical area pain, and the clinician noted that MRI of the cervical spine showed small right paracentral disk protrusion at C6-C7 with mild impingement upon right ventral spinal cord and other mild diseases at C2-C3, C3-C4, C5-C6; (iv) 04/11/2017, titled "Medical Treatment Record -Government Facility" page 6 of 58 that contains an April 2003 treatment record noting the Veteran's upper back pain; (v) 08/22/2008, titled "Medical Treatment Record -Government Facility" page 2 of 9 that contains the April 2008 VA treatment record noting arm and neck pain; (vi) 09/09/2008, titled "Medical Treatment Record -Government Facility" page 2 of 32 that contains a September 2008 VA treatment record, noting that during the in-service accident the Veteran suffered from fractures of left arm, left clavicle, and left ribs; (vii) 09/18/2014, titled "C&P Exam" page 8 of 23 that contains the September 2014 VA examination report for back conditions, in which the examiner noted that the Veteran has multiple orthopedic complaints, including his increasingly problematic neck, and that the back and right shoulder disabilities cannot be separated specifically as to missed time from work or specific duties that are problematic; (viii) 05/13/2014, titled "Email Correspondence" in which the examiner, who interpreted the Neck MRI, stated, "There are degenerative changes in cervical spine particularly the C5-C6 area. This is where the nerves that go to shoulders originates. I cannot say 100% that this is the cause of problems, but the MRI is not normal;" (ix) 03/29/2021, titled "Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief)" in which the Veteran's representative referred to an article suggesting that shoulder pathology may cause neck pain; (x) 07/16/2021, titled "Hearing Transcript" of the July 2021 Board hearing, at which the Veteran asserted that his neck pain directly related to his in-service accident, which might have caused a delayed onset of arthritis, and that he had neck pain from the beginning; (xi) 05/14/2024, tilted "CAPRI" page 2 of 130 that contains a May 2024 VA Neurology Clinic Note, in which the clinician noted that the Veteran had a neck trauma in 1974 when he was involved in a motorcycle crash that resulted in multiple fractures of the left shoulder, humerus and elbow. It took him more than a year to heal completely and he was left with intermittent pain, stiffness and limited range of motion of the left shoulder. He had a second accident while in the Navy when he fell out of a chair and hit his head on the wall with temporary loss of consciousness. Ever since that time he has had intermittent neck problems. At some point he was evaluated by an orthopedic surgeon but no surgery was recommended. He was never involved with the pain clinic and he is not interested in physical therapy. Note: The examiner should discuss the above noted evidence of record in the rendered opinions. Merely stating, "the evidence was reviewed" is no sufficient. Clear and separate supporting rationales must be provided for all the opinions rendered. If the examiner determines that it is not possible to provide an opinion without resorting to speculation, then the examiner must provide an explanation of why that is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or a deficiency in the examiner's knowledge. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative an SSOC and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem 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.