Citation Nr: 1108430 Decision Date: 03/03/11 Archive Date: 03/17/11 DOCKET NO. 07-25 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for low back pain. 2. Entitlement to service connection for degenerative disc disease of the cervical spine at C5-C7. 3. Entitlement to service connection for hepatitis B and hepatitis C. 4. Entitlement to service connection for diabetes mellitus, type II. 5. Entitlement to service connection for tinnitus. 6. Entitlement to an increased rating for service-connected gastroesophageal reflux disease (GERD) with history of duodenal ulcer and peptic ulcer disease in excess of 10 percent disabling, prior to June 30, 2008, and in excess of 30 percent disabling, beginning June 20, 2008. 7. Entitlement to an effective date prior to March 26, 2001, for the grant of service connection for GERD. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Pansiri, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to December 1972, during the Vietnam Era. This appeal comes before the Board of Veterans' Appeals (Board) from June 2006 and April 2008 rating decisions of the Department of Veterans Affairs (VA), Montgomery, Alabama, Regional Office (RO), which inter alia denied service connection for low back pain, degenerative disc disease of the cervical spine at C5-C7, hepatitis B and hepatitis C, and diabetes mellitus, type II. The Veteran disagreed with such decisions and subsequently perfected an appeal. The Board notes that the Veteran requested a hearing before a Decision Review Officer (DRO) and was notified that a hearing was scheduled for November 2007. See September 2007 DRO Hearing Notification Letter; see also August 2007 "Appeal to the Board of Veterans Appeals," VA Form 9, and Attachment. The Veteran subsequently withdrew his hearing request. See Statement in Support of Claim," VA Form 21-4138, received November 2007. The Veteran also requested a hearing before a member of the Board sitting at the RO and was notified that a hearing would be scheduled. See April 2010 Board Hearing Notification Letter; see also January 2010 "Appeal to the Board of Veterans Appeals," VA Form 9. The Veteran subsequently withdrew his hearing request. See June 2010 Memorandum from the Veteran's Representative. No further requests for hearings are of record. As such, the Board finds that the Veteran's hearing requests are withdrawn. The issues of entitlement to service connection for low back pain, degenerative disc disease of the cervical spine at C5-C7, and diabetes mellitus, type II, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. On November 6, 2007, before the Veteran's appeals for entitlement to service connection for tinnitus and an effective date prior to March 26, 2001, for the grant of service connection for GERD, were transferred to the Board, the agency of original jurisdiction (AOJ) received written notification from the Veteran that he wished to withdraw these appeals. 2. On January 29, 2010, after the Veteran's appeal for entitlement to an increased rating for service-connected GERD with history of duodenal ulcer and peptic ulcer disease in excess of 10 percent disabling, prior to June 30, 2008, and in excess of 30 percent disabling, beginning June 20, 2008, was transferred to the Board, the Board received written notification from the Veteran that he wished to withdraw such appeal. 3. The Veteran's service treatment records (STRs) contain no complaints, treatment, and diagnoses of hepatitis B and/or hepatitis C; hepatitis B and/or hepatitis C was not exhibited within the first post-service year; and there is no competent and credible evidence relating hepatitis B and hepatitis C to his active service or any incident therein. CONCLUSIONS OF LAW 1. The criteria for withdrawal of timely appeals for entitlement to service connection for tinnitus and an effective date prior to March 26, 2001, for the grant of service connection for GERD, filed by the Veteran, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). 2. The criteria for withdrawal of a timely appeal for entitlement to an increased rating for service-connected GERD with history of duodenal ulcer and peptic ulcer disease in excess of 10 percent disabling, prior to June 30, 2008, and in excess of 30 percent disabling, beginning June 20, 2008, filed by the Veteran, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010). 3. Hepatitis B and hepatitis C were not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Appeals The present appeals arise from February 2005 and June 2006 rating decisions to which the Veteran filed timely notices of disagreement (NOD), received April 2005 and September 2006, with the rating and effective date assigned following the grant of service connection for GERD and the denial of service connection for tinnitus. In December 2005 and August 2007, the Veteran submitted VA Form 9, "Appeal to Board of Veterans' Appeals" (Substantive Appeal), indicating he was appealing the aforementioned issues. In a statement signed by the Veteran and received by the AOJ on November 6, 2007, the Veteran indicated that he wished to withdraw his appeal on the issues of entitlement to service connection for tinnitus and earlier effective date for service connection of GERD. See Statement in Support of Claim," VA Form 21-4138, received November 2007. Further, during the pendency of the Veteran's appeals, in a December 2009 rating decision, the RO increased the Veteran's rating of his service-connected GERD disability to 30 percent disabling. In a statement signed by the Veteran and received by the Board on January 29, 2010, the Veteran indicated that he did "not wish to appeal the evaluation of [GERD] at this time." See "Statement in Support of Claim," VA Form 21-4138, received January 2010. The Board construes this statement as a withdrawal of the Veteran's appeal for entitlement to an increased rating for service-connected GERD with history of duodenal ulcer and peptic ulcer disease in excess of 10 percent disabling, prior to June 30, 2008, and in excess of 30 percent disabling, beginning June 20, 2008. Pursuant to the laws administered by VA, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5) (West 2002); 38 C.F.R. § 20.202 (2010). A Substantive Appeal may be withdrawn either on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(b)(1). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a). Here, the Veteran has withdrawn the appeals of entitlement to service connection for tinnitus; an effective date prior to March 26, 2001, for the grant of service connection for GERD; and an increased rating for service-connected GERD with history of duodenal ulcer and peptic ulcer disease in excess of 10 percent disabling, prior to June 30, 2008, and in excess of 30 percent disabling, beginning June 20, 2008. Hence, there remain no allegations of errors of fact or law for appellate consideration on the aforementioned issues. Accordingly, the Board does not have jurisdiction to review the appeals of the issue of entitlement to service connection for tinnitus; an effective date prior to March 26, 2001, for the grant of service connection for GERD; and an increased rating for service-connected GERD with history of duodenal ulcer and peptic ulcer disease in excess of 10 percent disabling, prior to June 30, 2008, and in excess of 30 percent disabling, beginning June 20, 2008. Thus, these appeals are dismissed. VA's Duties to Notify and Assist - Service Connection Claim for Hepatitis As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, that will assist in substantiating or that is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The VCAA duty to notify was satisfied by an August 2007 letter. This letter fully addressed all three notice elements; informed the Veteran of what evidence was required to substantiate his service connection claims; and of the Veteran's and VA's respective duties for obtaining evidence. In an attachment to the August 2007 notice letter, the RO also advised the Veteran as to how disability ratings and effective dates are awarded, as required in Dingess. See 19 Vet. App. at 486. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the veteran in the procurement of STRs and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Further, if the VA determines that VA medical examinations or opinions are necessary to decide a claim, the VA must provide such examination. 38 C.F.R. § 3.159(c)(4). A VA medical examination is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim. Id. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the claims folder contains the Veteran's STRs, VA medical records, private treatment records, Social Security Administration (SSA) records, and statements submitted by or on behalf of the Veteran. Further, the Veteran was provided a VA examination to determine the etiology of his hepatitis disability in February 2008. A copy of the February 2008 VA Examination Report is of record and has been reviewed. Neither the Veteran nor his representative has argued that the VA medical examination is inadequate, and review of such examination reveals no inadequacies or inconsistencies. As noted, the Veteran requested a hearing before a Decision Review Officer (DRO) and was notified that a hearing was scheduled for November 2007. See September 2007 DRO Hearing Notification Letter; see also August 2007 "Appeal to the Board of Veterans Appeals," VA Form 9, and Attachment. The Veteran subsequently withdrew his hearing request. See Statement in Support of Claim," VA Form 21-4138, received November 2007. The Veteran also requested a hearing before a member of the Board sitting at the RO and was notified that a hearing would be scheduled. See April 2010 Board Hearing Notification Letter; see also January 2010 "Appeal to the Board of Veterans Appeals," VA Form 9. The Veteran subsequently withdrew his hearing request. See June 2010 Memorandum from the Veteran's Representative. No further requests for hearings are of record. As such, the Board finds that the Veteran's hearing requests are withdrawn. Significantly, the record does not otherwise indicate any additional obtainable evidence that is necessary for a fair adjudication of the claim that has not been obtained. Therefore, no further notice or assistance to the claimant is required to fulfill VA's duty to assist the claimant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria and Analysis of the Service Connection Claim for Hepatitis Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002). If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2010). Service connection may also be granted for certain chronic diseases, such as diseases of the liver, to include hepatitis B and hepatitis C, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Furthermore, 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. 38 C.F.R. § 3.303(d). Service connection generally requires competent and credible evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In making all determinations, the Board must fully consider the lay assertions of record. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson. The Board's duty is to assess the credibility and weight of the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The reasonable doubt must be in the range of probability and more than pure speculation or remote possibility. 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, the Veteran seeks service connection for hepatitis B and C, which he maintains was a result of in-service inoculations from pressurized guns that were not sterile. On review of the evidence of record, the Board finds that service connection for hepatitis B and C is not warranted. Initially, the Board notes that there is a current hepatitis C disability, as reflected in a February 2008 VA Examination Report, meeting the threshold requirement for a service connection claim. However, with regard to the Veteran's claimed hepatitis B disability, it is unclear whether the Veteran has a hepatitis B disability as various post-service treatment records contain notation of a past medical history of hepatitis B but no actual diagnosis of the disability and only diagnoses of hepatitis C. See August 2006 Primary Care Provider Administrative Note; April 4, 2007 Primary Care Provider Urgent Care Clinic Visit Note; April 13, 2007 Primary Care Clinic Provider Note; July 23, 2007 Primary Care provider Clinic Note; December 2007 VA Examination Report; July 2008 Psychiatry Consult; August 2008 endoscopy History and Physical Note. However, even resolving all reasonable doubt in the Veteran's favor and assuming the Veteran has a hepatitis B disability, the service connection claim for hepatitis, including hepatitis B, still fails for the reasons discussed below. Review of the Veteran's STRs is negative for complaints, treatment, and/or diagnoses of hepatitis B and/or hepatitis C during the Veteran's active military service. Further, there is no in-service evidence of exposure to high risk factors, such as contact with blood and/or other bodily fluids, multiple sexual partners, and/or tattoos. The evidence of record also reveals that the Veteran had exposure to high risk factors, specifically IV drug use, alcohol abuse, and intra-nasal cocaine use, after his discharge from service. See February 2008 VA Examination Report. The absence of any diagnosis of the claimed pathology in the Veteran's STRs and post-service exposure to high risk factors constitutes negative evidence tending to disprove the assertion that he incurred any hepatitis B and/or hepatitis C disability during his service. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Further, there is no evidence of hepatitis B and/or hepatitis C within the first post-service year. See 38 C.F.R. §§ 3.307, 3.309 (2010). In fact, the first indication of hepatitis B and/or hepatitis C is reflected in an August 2006 Primary Care Provider Administrative Note, dated approximately thirty-four years post-service. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is also no evidence of a nexus between the Veteran's hepatitis B and hepatitis C disability and his service. In fact, the record contains a negative nexus opinion, and the Veteran has offered no nexus opinion to the contrary. In this regard, in a February 2008 VA Examination Report, the examiner opined that the Veteran's hepatitis disability is "less likely than not caused by or related to military service" including vaccinations, and "most likely than not related to history of IV drug abuse and intra-nasal cocaine abuse." The examiner also noted that the Veteran received vaccinations for smallpox, typhoid, tetanus, yellow fever, polio, influenza, and plague in-service. However, the examiner noted that the Veteran has multiple risk factors for hepatitis post-service, and medical literature indicated that hepatitis "is most likely transmitted through blood, primarily when drug uses share needles." The Board also finds that there is no evidence of continuity of symptomatology, specifically hepatitis B and/or hepatitis C symptomatology, after the Veteran's discharge from service to warrant service connection under such theory. See 38 C.F.R. § 3.303(b). In this regard, as noted, review of the Veteran's post-service treatment records indicate that he did not seek any treatment post-service for any hepatitis disability until 2006, approximately thirty-four years after discharge from service, and the Veteran has not argued that he suffered any other problems with hepatitis B and/or hepatitis C during the period of discharge from service until his first post-service treatment in 2006. Absent a finding of a relationship between the Veteran's hepatitis B and/or hepatitis C disability and his service or continuity of symptomatology related to service, there is no basis to grant service connection. Additionally, the Board notes that the Veteran has contended on his own behalf that his hepatitis B and hepatitis C disability is related to his military service. The Veteran advances that his current hepatitis disability is related to an in-service vaccinations with unsterile guns. The Veteran is competent to report his symptomatology during service. However, such statements are not credible because review of the medical evidence of record reveals no evidence of any hepatitis pathology in-service, he did not seek any treatment post-service for any hepatitis disability until 2006, approximately thirty-four years after discharge from service, and significantly, there is a negative nexus opinion of record. Therefore, the Board concludes that hepatitis B and/or hepatitis C was not incurred in or aggravated by service. The benefit-of-the-doubt doctrine has been considered; however, as the preponderance of the evidence is against the claims, it is inapplicable in the instant appeal. 38 U.S.C.A. § 5107(b); see also Gilbert, 1 Vet. App. at 54. ORDER The appeal for entitlement to service connection for tinnitus is dismissed. The appeal for entitlement to an increased rating for service-connected GERD with history of duodenal ulcer and peptic ulcer disease in excess of 10 percent disabling, prior to June 30, 2008, and in excess of 30 percent disabling, beginning June 20, 2008, is dismissed. The appeal for entitlement to an effective date prior to March 26, 2001, for the grant of service connection for GERD is dismissed. Entitlement to service connection for hepatitis B and hepatitis C is denied. REMAND The Veteran also seeks service connection for low back pain, degenerative disc disease of the cervical spine at C5-C7, and diabetes mellitus, type II. Although the Board regrets the delay, further development is needed prior to adjudicating the merits of the claims. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection generally requires competent and credible evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Further, a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a)-(b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see also Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Service connection is also warranted for a disability that is aggravated by, proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49(2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the Court has held that "a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional." LeShore v. Brown, 8 Vet. App. 406, 409 (1995). However, a medical opinion cannot be disregarded solely on the rationale that the medical opinion is based on a history provided by the veteran. Coburn v. Nicholson, 19 Vet. App. 427 (2006). On the other hand, the Board may reject a medical opinion if the Board finds that other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion. The Board should evaluate the credibility and weight of the history upon which the opinion is predicated. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Low Back Pain Claim The Veteran claims that his low back disability is related to various in-service treatment of low back pain. In the alternative, he also claims that if his low back disability is a pre-existing disability, such disability was aggravated by service. Review of the evidence of record reveals that the Veteran was provided with a VA examination regarding the etiology of his low back disability. See December 2007 VA Examination Report. Although the examiner provided an opinion regarding the etiology of the Veteran's low back disability, the Board finds that such opinion is incomplete. In this regard, although the examiner provided a negative opinion regarding whether the Veteran's low back disability is related to the Veteran's service, the examiner failed to opine whether the Veteran's low back disability pre-existed his service and if so, whether the pre-existing low back disability "was aggravated by" the Veteran's service. Therefore, the Board finds such examination inadequate to decide the claim. As such, an addendum to the December 2007 VA Examination Report regarding the service connection claim for low back pain, or a new VA examination, if the December 2007 examiner is not available, is necessary to ascertain whether the Veteran's low back disability pre-existed his service, and if so, whether the pre-existing low back disability was aggravated by service. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c)(4) (2010). Cervical Spine Claim Review of the record reveals that the Veteran provided opinions from private physicians regarding the etiology of his degenerative disc disease of the cervical spine at C5-C7 disability. However, the private physicians did not provide any rationale for their positive opinions. See May 2005 Private Treatment Letter from Dr. C.L. Parker; September 2008 Private Treatment Note from Dr. W.S. Fleet; March 2008 and November 2007 Private Treatment Letters from Dr. J.S. Hankins. Further, although the private physicians indicated that there could be a relationship between the Veteran's degenerative disc disease of the cervical spine at C5-C7 disability and his various in-service injuries, including a fall and a football injury, the Board finds that such opinions are speculative and are entitled to minimal probative weight. The Board notes that the use of the words "possible" "may" or "can be", as in this case, makes a doctor's opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28 (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by physician is too speculative). Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. The claims folder also contains a February 2008 VA Examination Report, in which the examiner opined that the Veteran's cervical spine disability is "least likely than not caused by or related to military service more than 30 years ago," and is "most likely than not related to degenerative changes caused by natural aging." Although the examiner provided a negative opinion regarding the etiology of his degenerative disc disease of the cervical spine at C5-C7 disability, the examiner did not provide any rationale for the negative opinion. See February 2008 VA Examination Report. Therefore, the Board finds such opinions inadequate to decide the claim. Further review of the claims folder is negative for any opinion regarding the etiology of the Veteran's cervical spine disability. Based on the foregoing, a new VA exam is necessary to ascertain whether the Veteran's cervical spine disability is related to his service. The fulfillment of the duty to assist requires a thorough and contemporaneous medical examination that considers prior medical examinations and treatment in order to conduct a complete evaluation of the Veteran's claim. 38 C.F.R. § 4.2 (2010). Where further evidence, or clarification of the evidence, is needed for proper appellate decision-making, a remand to the RO is required. 38 C.F.R. § 19.9(a)(1) (2010). Diabetes Mellitus Claim The Veteran claims that his diabetes mellitus disability is secondary to his service-connected post-traumatic stress disorder (PTSD) disability. Review of the evidence of record is negative for any medical opinion regarding whether the Veteran's diabetes mellitus disability is secondary to his service-connected PTSD disability. Based on the foregoing, a VA exam is necessary to ascertain whether the Veteran's diabetes mellitus disability is related to, proximately due to, or aggravated by his service-connected PTSD disability. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c)(4) (2010). Accordingly, the case is REMANDED for the following action: 1. The claims folder should be returned the same VA examiner who conducted the December 2007 VA examination at the Pensacola Clinic for an opinion as to whether the Veteran's low back disability pre-existed service. If the examiner determines the Veteran's low back disability pre-existed service, then she should provide an opinion as to whether it is likely as not (a 50 percent probability or greater) that the pre-existing low back disability itself was otherwise aggravated or permanently worsened as a result of the Veteran's service. In giving an opinion, the examiner should specifically comment as to whether such aggravation/worsening may be considered a permanent worsening of a pre-existing condition, or whether such aggravation/worsening resulted in a temporary exacerbation or natural progression of the pre-existing low back disability. A complete rationale should be provided for any opinion. If the December 2007 VA examiner is not available, the Veteran should be provided a new VA examination regarding the extent and etiology of his low back disability. The examiner should provide an opinion as to whether the Veteran's low back disability pre-existed service. If the examiner determines the Veteran's low back disability pre-existed service, then she should provide an opinion as to whether it is likely as not (a 50 percent probability or greater) that the pre-existing low back disability itself was otherwise aggravated or permanently worsened as a result of the Veteran's service. In giving an opinion, the examiner should specifically comment as to whether such aggravation/worsening may be considered a permanent worsening of a pre-existing condition, or whether such aggravation/worsening resulted in a temporary exacerbation or natural progression of the pre-existing low back disability. If the examiner determines that the Veteran's low back disability did not pre-exist service, he or she should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current low back disability is related to the Veteran's service, to include his in-service treatment for low back pain. A complete rationale should be provided for any opinion. The claims folder should be made available to the examiner for review. The entire claims file must be reviewed by the examiner in conjunction with examination and the report should state that such review has been accomplished. 2. The claims folder should be returned the same VA examiner who conducted the February 2008 VA examination at the Pensacola Clinic (please note that this is the same examiner who conducted the December 2007 VA examination) for clarification of the opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current cervical spine disability was incurred in or aggravated by the Veteran's service, or is otherwise related his service. A complete rationale should be provided for any opinion. If the February 2008 VA examiner is not available, the Veteran should be provided a VA examination regarding the nature and etiology of his cervical spine disability. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current cervical spine disability was incurred in or aggravated by the Veteran's service, or is otherwise related his service. The claims folder should be made available to the examiner for review. The entire claims file must be reviewed by the examiner in conjunction with examination and the report should state that such review has been accomplished. 3. The Veteran should also be provided a VA examination regarding the extent and etiology of the Veteran's diabetes mellitus, type II, disability. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the diabetes mellitus, type II, disability is related to, proximately due to, or aggravated by the Veteran's service-connected PTSD disability. A complete rationale should be provided for any opinion. The claims folder should be made available to the examiner for review. The entire claims file must be reviewed by the examiner in conjunction with examination and the report should state that such review has been accomplished. 4. Upon completion of the above-requested development, the RO should readjudicate the Veteran's service connection claims for low back pain, degenerative disc disease of the cervical spine at C5-C7, and diabetes mellitus, type II, taking into account any newly obtained evidence. If the service connection claims remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case as to the issues remaining on appeal, and afforded a reasonable period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 failure to cooperate by not attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs