Citation Nr: 1128428 Decision Date: 07/29/11 Archive Date: 08/04/11 DOCKET NO. 05-25 453A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a neck/cervical spine disorder. 3. Entitlement to service connection for a respiratory disorder, claimed as due to asbestos exposure. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The Veteran served on active duty in the military from April 1954 to February 1956. This appeal to the Board of Veterans' Appeals (Board) is from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied the Veteran's claims for service connection for residuals of back and neck injuries, stomach and sinus conditions alleged to be due to a bacterial infection, flat feet, and a respiratory condition purportedly due to asbestos exposure. As support for these claims, the Veteran testified at a videoconference hearing in December 2009 before the undersigned Veterans Law Judge of the Board. Thereafter, in January 2010, the Board denied the claims for service connection for stomach and sinus disorders. Whereas the Board remanded the remaining claims to the RO, via the Appeals Management Center (AMC), for further development and consideration. The AMC since has issued a decision in January 2011, on remand, granting the claim for service connection for flat feet, i.e., pes planus, and assigning a 50 percent rating for this disability retroactively effective from March 21, 2003. Since the Veteran has not, in response, filed a notice of disagreement (NOD) concerning either this rating or effective date, this claim also is no longer in dispute. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he must separately appeal these "downstream" issues). The AMC's May 2011 supplemental statement of the case (SSOC) continued to deny the remaining claims for service connection for low back, neck/cervical, and respiratory disorders, so these three remaining claims are still at issue. With respect to these three remaining claims, the Board's January 2010 remand directed the scheduling of a VA compensation examination to determine whether the Veteran's low back and neck/cervical spine disorders are related to his military service. Since, however, this requested medical opinion was not obtained, the Board unfortunately must again remand these two claims to the RO via the AMC in Washington, DC. See Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008). Therefore, in this decision the Board is only deciding the claim for service connection for a respiratory disorder - which the Veteran is alleging is due to asbestos exposure. The additional issue of his entitlement to service connection for heart disease, which he also is alleging is due to asbestos exposure, has been raised by the record but has not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). It therefore would be potentially prejudicial to the Veteran for the Board to consider this additional claim in the first instance. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board therefore is instead referring this additional claim to the RO for all necessary development and consideration. The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's service treatment records (STRs) are unavailable and presumed destroyed in a 1973 fire at the National Personnel Records Center (NPRC), which is a military records repository, so while in the government's possession. 2. In any event, even accepting as credible the Veteran's assertion that he was exposed to asbestos while on active duty in the military, he does not have a respiratory disorder to account for his complaints of shortness of breath, so no ratable disability as a consequence of that exposure - again, even assuming for the sake of argument that it occurred as alleged. CONCLUSION OF LAW A respiratory disorder was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist Before addressing the underlying merits of a claim, the Board is required to ensure that VA's duties-to-notify-and-assist obligations have been satisfied under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. A March 2003 letter from the RO and an April 2010 letter from the AMC satisfy these notice requirements. These letters properly informed the Veteran of the information and evidence required to substantiate his claim for service connection for a respiratory disorder due to asbestos exposure, and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. On remand, the April 2010 letter also discussed the downstream disability-rating and effective-date elements of his claim, see Dingess, supra, and the claim since has been readjudicated by the AMC in the May 2011 SSOC, including considering any additional evidence submitted or otherwise obtained in response to that additional VCAA notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to rectify ("cure") a timing defect). See also Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). With asbestos-exposure-related claims, in addition to the VCAA, VA must also determine whether the claim-development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the Veteran's claim had been properly developed and adjudicated, the Court indicated the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). To this end, the RO/AMC must determine whether military records contain evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). The RO and AMC, on remand, complied with these procedures. Pursuant to the Board's January 2010 remand, the AMC's April 2010 letter requested these details, including the nature of the disability the Veteran claims is related to asbestos exposure during his military service, the history of his exposure in service, and his history of employment after service. His claim, as mentioned, was then readjudicated in the May 2011 SSOC following the provision of this notice. See Prickett and Mayfield IV, both supra. In any event, the Board is deciding this element of his claim in his favor since evidence indicating he may have been exposed to asbestos in service is unavailable on account of his missing and presumed destroyed service treatment and personnel records. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of this claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Unfortunately, however, the RO and AMC have made all necessary attempts to obtain these missing records concerning his service from the NPRC, from him personally, and from the Surgeon General's Office (SGO). These attempts resulted in obtaining an April 1954 SGO report showing treatment for prostatitis, but making no mention of his claimed respiratory disorder or back and neck injuries. See Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding the heightened duty to assist a Veteran in developing facts pertaining to his claim in a case in which STRs are presumed destroyed includes the obligation to search for alternative medical records). VA also has a heightened duty in this circumstance to consider the applicability of the benefit-of-the-doubt rule and to explain the reasons and bases for its decision. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). But missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have medical nexus evidence supporting his claim by suggesting a correlation or association between his currently claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406. That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). In light of this heightened duty, the Board is mindful that the Veteran has not been afforded a VA compensation examination for a medical opinion concerning whether he has a respiratory disorder as a result of his military service - including especially to his alleged exposure to asbestos. But this is because other evidence in the file, namely, his VA outpatient treatment records, do not indicate he has a diagnosed respiratory disability to account for his complaints of shortness of breath. And while it is true there instead need only be persistent or recurrent symptoms of a disability, so like shortness of breath, wheezing, and tightness in his chest about which he has complained, these complaints have been attributed to a heart disorder, not lung or respiratory disorder, per se. And to the extent this heart disorder may be attributable to his military service, and especially to his alleged asbestos exposure, the Board is referring this additional claim for a heart disorder to the RO/AMC for all appropriate development and initial consideration. So any examination he receives will be in relation to this additional claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). That is to say, under these circumstances presented, a VA examination is not required to decide his claim for a respiratory disorder. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010)(noting that a Veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination, since all Veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). Accordingly, the Board concludes that VA has satisfied its duties to notify and assist the Veteran with this claim for a respirator disorder. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). II. Legal Criteria 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, 1131; 38 C.F.R. § 3.303(a). Stated somewhat differently, service connection requires: (1) competent and credible evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). An in-service injury alone is not enough, as there must be a chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, or this is legitimately questionable, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Service connection also may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). There is no statute specifically dealing with service connection for asbestos-related diseases, nor has the Secretary promulgated any specific regulations. In 1988, however, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). VA must analyze the Veteran's claim for service connection for asbestos-related disease under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. The most common disease resulting from exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See M21-1, Part VI, 7.21(a)(1). Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, 7.21(a)(3). Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. See M21-1, Part VI, 7.21. III. Analysis While the record suggests the Veteran may have been exposed to asbestos during his military service, there is no competent and credible evidence indicating he has a ratable respiratory disorder, much less a consequence. Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997). See, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Before discussing the medical evidence, the Board will resolve all reasonable doubt in the Veteran's favor and presume he was exposed to asbestos during his service as he is alleging. 38 C.F.R. § 3.102. It still has to be shown, however, that he has a ratable respiratory disorder as a consequence. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). In this absence of this required proof of a ratable respiratory disorder, at least since the filing of this claim, there is no current disability to attribute to the presumed asbestos exposure in service, so no basis for granting service connection. The Veteran claims that he was exposed to asbestos while working as a mechanic at Cranwich Camp in Brandon, England. He testified at his hearing that brake pads he repaired contained asbestos and that he did not wear protective gear. His service personnel records confirm that his military occupational specialty (MOS) was vehicle repairman. And since working with friction products such as clutch facings and brake linings is associated with asbestos exposure, the evidence confirms that he was probably exposed to asbestos in service. See M21-1, Part VI, 7.21. But even so, there simply is no competent and credible evidence confirming the Veteran has a respiratory disorder, such as to account for his subjective complaints. The first documented evidence of respiratory problems was not until he began receiving VA outpatient treatment in 2003. A January 2003 record notes his complaints of shortness of breath and wheezing with exertion, as well as his history of working around dust at his civilian job with the U.S. Postal Service. The diagnostic assessment merely noted his symptom of shortness of breath, with exposure to pollutants on the job (but referring to his civilian job at the U. S. Postal Service, not to his duties and responsibilities while in the military). And, regardless, shortness of breath and wheezing are merely symptoms and do not constitute a ratable disability. The term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). A symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) (indicating that pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). Also, and perhaps even more importantly, records dated in May and June of 2003 indicate the Veteran's symptoms of shortness of breath and dyspnea may be due to a heart condition, so not to a respiratory disorder, per se. A May 2003 record notes his complaints of shortness of breath and tightness in his chest. This time, however, the diagnostic assessment was angina - with multiple risk factors, including diabetes mellitus, hypertension, age, male, and a family history. So even accepting the notion that he was experiencing potentially relevant symptoms, there was no attribution of these symptoms to an underlying respiratory disorder and, in turn, to asbestos exposure during or coincident with his military service. When seen in June 2003, it was noted that a then recent stress test was negative for ischemia, but that "clinical suspicion was high." In other words, the negative stress test did not remove the suspicion that he might still have an underlying heart condition to account of his complaints of shortness of breath and tightness in his chest. As a result, the diagnoses included rule about obstructive coronary artery disease (CAD). These records therefore show that a ratable respiratory disorder has not been identified to account for the Veteran's complaints involving shortness of breath, wheezing, and tightness in his chest, which could be due instead to a heart condition (CAD or whatever). The Board emphasizes that a claim for service connection for a heart condition is not an issue currently on appeal and therefore is being referred back to the RO/AMC for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). If the Board was to unilaterally assume jurisdiction over a claim, and not grant it, this could be potentially prejudicial to the Veteran inasmuch as he would lose one level of judicial review of his claim ("one bite at the apple" so to speak). Cf. Hickson v. Shinseki, 23 Vet. App. 394 (2010) (indicating that, generally, where the Board reopens a claim on the basis of new and material evidence, but the RO did not, the claim must be remanded for initial RO consideration of the claim on its underlying merits unless there is a waiver from the appellant or no prejudice would result from the Board's initial adjudication of the underlying claim). So these records provide evidence against the claim for service connection for a respiratory disorder since they do not suggest the Veteran's symptoms are the result of an underlying respiratory disorder, instead, a heart disorder. The Veteran, moreover, is not competent to attribute his complaints of shortness of breath, wheezing, and chest tightness to a respiratory disorder versus heart disorder. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather this issue may, depending on the facts of the particular case at hand, be established by competent lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Here, though, rendering a diagnosis in this particular instance necessarily requires supporting medical evidence because a respiratory disorder - especially one claimed to be the result of exposure to asbestos, is not the type of condition that readily lends itself to mere lay diagnosis, much less to comment on its etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). See also Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a respiratory disorder, claimed as due to asbestos exposure. As the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b) (West 2002; 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal of this claim is denied. ORDER The claim of entitlement to service connection for a respiratory disorder, allegedly due to asbestos exposure, is denied. REMAND As the Board previously explained when remanding the remaining claims for low back and neck/cervical spine disorders in January 2010, a VA examination and medical opinion are needed to determine whether these claimed disorders are related or attributable to the Veteran's military service. Following and as a result of the Board's prior January 2010 remand, he was provided a VA examination in April 2010 to answer this question (with additional comment provided in a May 2011 addendum report). However, both the examination report and addendum are inadequate for rating purposes. 38 C.F.R. § 4.2. The Veteran contends that he injured his back and neck during basic training when he fell off a training wall after being hit by a strong wind during a storm. He was allegedly hospitalized for about five weeks. Unfortunately, as already discussed, none of his STRs are available for consideration, as they apparently were destroyed in the 1973 fire at the NPRC, which is a military records repository, so while in the government's possession. The evidence that is available for consideration confirms the Veteran has disabilities affecting the lumbar and cervical segments of his spine. Notably, X-rays taken in March 2003 revealed degenerative changes in these segments. The determinative issue therefore is whether these degenerative changes are the result of the type of trauma during service alleged or, instead, the result of factors unrelated to his military service. See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The only medical opinion addressing this determinative issue is an October 2004 statement by Dr. W.D., who indicated that the etiology of the Veteran's back and neck disorders dates back to his period of military service. Dr. W.D. reasoned that X-rays were consistent with an old injury of 40 years' duration. This opinion thus supports the claims; however, it is problematic in that Dr. W.D. did not analyze, consider or otherwise account for the significance of intercurrent injuries the Veteran's also had sustained to his lower back since service in 1988 and to his neck and back even more recently, in December 2003, while working for the U.S. Postal Service. Therefore, the Board noted in its prior January 2010 remand that this medical opinion did not provide a sufficient basis for granting the claims, but that it was sufficient to trigger VA's duty to assist the Veteran with his claims by obtaining a medical nexus opinion as to whether these disorders are related to his alleged injury in service. See 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4); see also McLendon, 20 Vet. App. 79 (2006). The Board's remand was to determine whether this was an as likely as not proposition. The Board also directed that, because the Veteran is competent to report the onset of back and neck pain in service - as this requires only personal knowledge, not medical expertise - the examiner must specifically address the Veteran's report of his low back and neck disorders having first manifested during his military service in determining whether any current low back or cervical spine disability was incurred in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). The Board explained that this consideration is especially necessary in this particular case because the Veteran's STRs are unavailable. Although the Veteran subsequently had this requested examination in April 2010, the examiner did not answer the Board's question regarding causation. In fact, no opinion concerning the etiology or date of onset of the Veteran's back and cervical spine disorders was mentioned. The claims file was therefore returned to the examiner to obtain this requested opinion. This time, in a May 2011 addendum report, the examiner provided the following opinion: "It is at least as likely as not that the Veteran's current diagnosis, DJD [degenerative joint disease], of the lumbar spine and cervical spines cannot be determined from a physical examination of an injury sustained in the service in 1954-56. Medical records were destroyed in the 1973 fire in St. Louis." The following rationale was then cited, "medical examination, medical knowledge and medical records." In other words, this examiner indicated that he could not render an opinion as to whether the Veteran's back and cervical spine disorders are related to service without resorting to mere speculation. Statements like this, which are inconclusive as to the origin of a disorder, generally cannot be employed as suggestive of a linkage between the disorder and the Veteran's military service. Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). However, these types of opinions also cannot be used to rule out this purported correlation, either. Ultimately, noncommittal opinions like this amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). Indeed, in past decisions the Court also held that saying a condition "may" be related to the Veteran's military service is tantamount to saying it just as well "may not" be related to his service, so, because of this equivocality, also an insufficient basis to grant service connection. See Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Winsett v. West, 11 Vet. App. 420 (1998) And it was primarily for these reasons and because of this looming uncertainty regarding the etiology of these claimed disorders that the AMC continued to deny these claims on remand in the May 2011 SSOC. An etiological opinion, however, has to be viewed in its entire context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). Moreover, additional precedent cases have been issued shedding further light on how to properly assess and determine the probative value of these noncommittal opinions. Notably for instance, in Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) indicated a determination regarding service connection requires consideration of all pertinent medical and lay evidence, including medical opinions that do not state definitively when a particular disorder or condition began; therefore, classifying a medical opinion as "non-evidence" is "troubling." In Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009), the Federal Circuit Court more recently held that an examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection; therefore, it is not pertinent evidence regarding service connection. The remainder of the report, however, must be considered as evidence of whether the disability was incurred in service. An even more recent precedent case also admonished the Board for relying on medical opinions that also were unable to establish this required linkage, without resorting to mere speculation, as cause for denying the Veteran's claims. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. So, here, the examiner must specify whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination in a service-connected claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). See, too, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (indicating an opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). The Board also notes that, in violation of its prior remand directives, the examiner did not comment on the Veteran's report of his low back and neck disorders having first manifested during his military service in determining whether any current low back or cervical spine disability was incurred in service. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of VA, as a matter of law, a concomitant duty to ensure compliance with the terms of the remand). But see, too, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (indicating there need only be "substantial", not "exact", compliance with remand directives). Accordingly, these claims are REMANDED for the following additional development or consideration: 1. Refer the claims file back to the VA examiner who examined the Veteran in April 2010 for an addendum to that examination report. If it is not possible or feasible to have this same VA examiner provide further comment, then have someone else equally qualified provide the necessary opinion. And if this latter situation arises, this may necessitate having the Veteran reexamined, but this is left to the designee's discretion. Based on a review of the claims file (or, at the very least, refamiliarization with the relevant evidence) the examiner is asked to indicate the likelihood (very likely, as likely as not, or unlikely) the Veteran's back and cervical spine disorders are related to his military service. Because the Veteran is competent to report the onset of back and neck pain in service - as this requires only personal knowledge, not medical expertise - the examiner must specifically address the Veteran's report of his low back and neck disorders having first manifested during his military service in determining whether his back and cervical spine disorders were incurred in service. Dalton, 21 Vet. App. at 23 (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). This consideration is especially necessary in this particular case since the Veteran's STRs are unavailable. If the examiner is unable to provide this requested medical opinion without resorting to mere speculation, he or she must discuss why this is not possible or feasible. In particular, the examiner must specify whether an opinion cannot be rendered because the limits of medical knowledge have been exhausted or whether additional testing, information, or other procurable data could be obtained that would lead to a conclusive or more definitive opinion. The examiner must discuss the rationale of any opinion offered, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. 2. Then readjudicate the claims for service connection for back and cervical spine disorders in light of the additional evidence. If either claim is not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims. The appellant has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs