Citation Nr: 1225152 Decision Date: 07/19/12 Archive Date: 07/30/12 DOCKET NO. 07-32 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for spine injury residuals. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran had active service from September 1973 to September 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In July 2009, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on this part. REMAND Unfortunately, another remand is necessary in this case to accomplish the development that the Board ordered in two previous remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (explaining that a remand "confers on the veteran ..., as a matter of law, the right to compliance with the remand orders," and the Board itself errs when it fails to ensure compliance with the terms of such a remand). In November 2009, the Board remanded this issue for VA to afford the Veteran an orthopedic examination by an appropriate specialist. The Board directed that the claims file should be made available to the physician for review of the pertinent evidence. The Board also directed that the physician should elicit a complete history of any spinal trauma from the Veteran, provide the current diagnosis or diagnoses relative to the spine; and for each diagnosis, provide an opinion as to whether it is at least as likely as not that the disability had its onset in service. The Board specified that the examiner was to offer a rationale for any conclusion reached. Finally, the Board directed that if any of the requested information could not be provided, the physician should state the reason why it could not be provided. In a December 2009 report of examination, the examiner stated that the claims file had been reviewed, listed the assertions and reports of the Veteran, and provided diagnoses of remote compression fracture of the thoracic spine and degenerative disc disease of the lumbar spine. His opinion and rationale as to the compression fracture of the thoracic spine and its relationship to service, was as follows: Having reviewed the record, his examination in 1993 was normal. No x-rays were taken. There is no x-ray evidence of any thoracic spine fracture in service. consequently, any relationship of his thoracic spine compression fractures to his service would have to be considered speculative. There is no information to make a decision. His opinion and rationale as to the degenerative disk disease of the lumbar spine was as follows: "It is not likely his degenerative disk disease of the lumbar spine is related, but more likely occurring as a natural aging process. This is based on review of the record and examination." In May 2011, the Board again remanded the issue. The Board explained that the examiner failed to properly address whether the Veteran's thoracic spine compression fractures were related to service. It explained that the examiner's conclusion that a diagnosis or etiology is not possible without resort to speculation is itself a medical conclusion and the examiner must explain such conclusion. In the May 2011 Remand, the Board directed that the claims file should be returned to the examiner who provided the earlier opinion and the examiner should render an adequate opinion and provide a complete rationale for the conclusion reached. The AMC returned the examination report to the examiner and requested an opinion. An opinion was provided in June 2011. The only difference in the examination report from June 2011 as compared to December 2009 was the addition of the following: "Having reviewed the record it is less likely than not that his thoracic spine is related to service. C-file reviewed no change in opinion." The examination remains inadequate. As explained in the May 2011 Remand, "[a]n examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion." Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). In Jones, the U.S. Court of Appeals for Veterans Claims explained that an examiner's conclusion that an opinion could not be rendered without resorting to speculation must be supported by an explanation by the examiner or must be otherwise apparent in the Board's review of the evidence. Id. The Court also explained that the examiner may have an obligation to conduct research in the medical literature, depending on the evidence in the record at the time of the examination. Id. Additionally, the Court explained that "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." Id. After the claims file was returned to the examiner, he did not provide an explanation for any conclusion reached. Rather, he changed his conclusion from one of not being able to render an opinion without resorting to speculation, to one that it is less likely as not that the Veteran's compression fractures were due to service. Significantly, the examiner did so without any rationale for that latter conclusion or any rationale for why he changed the conclusion. This is problematic given that it does not appear that any additional pertinent evidence was added to the claims file between the time of the December 2009 opinion and the June 2011 opinion. As the lack of rationale for the conclusion reached renders the opinion inadequate, a remand is necessary to obtain an adequate opinion in this regard. The Board also determines that the opinion is inadequate with regard to whether the Veteran's degenerative disc disease of the lumbar spine had onset during or is related to his active service. The opinion rendered in December 2009 provides an alternative basis for the degenerative disc disease, the Veteran's natural aging process, but does not explain why it is more likely than not that the degenerative disc disease is due to his natural aging process rather than due to his active service. The rationale as it stands is too general as it appears to categorically reject a nexus between service and degenerative disc disease based upon the age of the claimant without consideration of the individual facts of the case. An adequate opinion is one based on upon consideration of the relevant medical history, one that describes the disability in sufficient detail so that the Board's decision will be a fully informed one, and one that "support[s] its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 123-24(2007). On remand, the Veteran must be afforded an examination by a physician other than the one who examined him in December 2009 and the examiner must render an adequate medical opinion as to whether the Veteran's compression fractures of the thoracic spine and/or degenerative disc disease of the lumbar spine had onset during his active service or were caused by such service. Whatever conclusion the examiner arrives at, he or she must provide analysis supporting such conclusion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an orthopedic examination of his spine by an appropriate specialist other than the physician who examined him in December 2009. The claims file must be made available to the examiner. The examiner must review the claims file in conjunction with the examination. This review must include review of this entire Remand, not only the numbered action paragraphs. The examiner must annotate the report as to whether the claims file and entire Remand were reviewed. The examiner must address the following: (a) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's remote compression fracture of the thoracic spine had onset during or was caused by his active service. A complete and detailed explanation must be provided for any conclusion reached. If the examiner concludes that he or she cannot determine without resorting to mere speculation that the remote compression fracture of the thoracic spine did or did not have onset during or was caused by his active service, the examiner must provide a complete and detailed explanation as to why this is so. The explanation must demonstrate that this conclusion is based on the limitations of knowledge in the medical community at large and not merely those of the particular examiner. (b) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's degenerative disc disease of the lumbar spine had onset during or was caused by his active service. A complete and detailed explanation must be provided for any conclusion reached. If the examiner should determine that it is more likely that his degenerative disc disease is due to a cause other than service, the examiner must explain why the other cause is more likely and such explanation must take into account the relevant history of the Veteran's condition. If the examiner concludes that he or she cannot determine without resorting to mere speculation that the degenerative disk disease of the lumbar spine did or did not have onset during or was caused by his active service, the examiner must provide a complete and detailed explanation as to why this is so. The explanation must demonstrate that this conclusion is based on the limitations of knowledge in the medical community at large and not merely those of the particular examiner 2. The AMC/RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the AMC/RO must implement corrective procedures. 3. Then, readjudicate the issue on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The Veteran 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. 2011). _________________________________________________ F. JUDGE FLOWERS 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) (2011).