Citation Nr: 1111858 Decision Date: 03/24/11 Archive Date: 04/06/11 DOCKET NO. 09-37 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the cervical spine. 2. Entitlement to service connection for left arm numbness secondary to degenerative disc disease of the cervical spine. 3. Entitlement to service connection for left shoulder pain secondary to degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant (the Veteran) had active service from January 1974 to December 1990. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that although the Veteran requested a local hearing on his VA Form 9, he specifically withdrew his request in a November 2009 letter, signed by him. There are no other outstanding hearing requests of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that a remand is necessary because (1) a VA examination and nexus opinion are necessary to reach a decision on these claims; and (2) the VA examination provided in this case is inadequate, as no opinion was rendered. Regarding the necessity of an examination and opinion, the VCAA and its implementing laws and regulations provide, generally, that an examination or opinion is necessary if the evidence of record contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and establishes that the claimant sustained an injury or disease in service; indicates that the claimed disability or symptoms may be associated with the established injury, or disease in service or with another service-connected disability, but does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2010). The threshold for finding that there "may" be a nexus between current disability or persistent or recurrent symptoms of disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 at 83 (2006). The types of evidence that "indicate" that a current disability "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. Here, the service treatment records show that the Veteran was treated for complaints of neck stiffness and pain in August 1975. The diagnosis was torticollis. The Veteran was also treated in March 1985 for complaint of left shoulder and arm pain, associated with playing soccer, with a diagnosis of rhomboiditis secondary to muscle strain. His upper extremities and spine were found to be normal at separation. Nevertheless, there is competent evidence of a cervical spine injury in service, with associated left upper extremity and shoulder symptomatology. After service, the Veteran underwent a discectomy and fusion at C4-C7, and a C6 corpectomy in March 2007. In a February 2007 preoperative evaluation, he was found to have a congenital spinal stenosis. However, there was no finding regarding which, if any, symptomatology was attributable to the congenital condition. The Veteran was afforded a VA examination in conjunction with these claims in April 2008. The examiner diagnosed multi-level degenerative disc disease of the cervical spine with operative discectomies and corpectomies and a rod-and-screw fusion at C4-T1. Although the examiner was asked for an opinion regarding etiology, he declined to provide one, stating that he could not resolve the issue without resort to speculation. The stated rationale for this conclusion was that there is no workup or examination reports that could substantiate a connection between the two, and problems were not mentioned on the retirement physical or for 22 years after. Thus, there is competent evidence of a current disability and/or symptomatology involving the neck, left shoulder and left upper extremity that may be related to the in-service injury. As such an opinion is necessary. Where VA has a duty to obtain a medical opinion, the failure of a particular examiner to provide such opinion does not absolve VA of its duty. Before the Board can rely on the April 2008 examiner's conclusion that an etiology opinion is not possible, the examiner must explain the basis for such a conclusion, or the basis must otherwise be apparent in the Board's review of the evidence. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Furthermore, the examiner should clearly identify precisely what facts cannot be determined. For example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Finally, VA must ensure that any medical opinion, including one that states no conclusion can be reached is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves, supra. When the record leaves this issue in doubt, it is the Board's duty to remand for further development. See Jones (cited above). Here, the examiner's stated basis for not being able to answer the question appears to support a negative conclusion rather than addressing why a conclusion cannot be reached. Therefore clarification, at a minimum, is necessary. Should the examiner still conclude that the question cannot be answered, further reasoning is required. Accordingly, the case is REMANDED for the following action: 1. Obtain a supplemental opinion from the examiner who conducted the April 2008 examination. If the examiner is not available, obtain an opinion from another medical professional. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims folder must be made available to and reviewed by the reviewer/examiner. The reviewer/examiner is asked to provide an opinion as to whether the Veteran's current cervical spine, left shoulder, and left upper extremity symptomatology are related to the in-service complaints. If the evidence does not establish a 50 percent or better probability, then the examiner should state this. The reviewer/examiner is advised that absolute certainty is not required. If the examiner still concludes that an opinion cannot be rendered, the examiner should precisely state the reasons for this conclusion, addressing what facts cannot be determined, whether all procurable and assembled data have been considered, and whether additional research, examination, or testing might facilitate a conclusive opinion. 2. Readjudicate the remanded claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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). 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). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).