Citation Nr: 1234925 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 07-10 548 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a back disability, claimed as lumbar strain with degenerative joint disease (DJD). 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from January 1961 to February 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision, by the Portland, Oregon RO. In December 2008, the Board remanded the issues cited above for additional evidentiary development. In March 2010, the Board again remanded the case. The Appeals Management Center (AMC) re-adjudicated the claims by way of a SSOC issued in March 2012. With respect to the issues of service connection for PTSD and service connection for GERD, the Board finds that there was substantial compliance with the terms of the March 2010 remand decision; thus, the Board may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for a back disorder is addressed in the remand that follows the decision below. FINDINGS OF FACT 1. The Veteran does not have PTSD. 2. The Veteran's GERD is not attributable to military service and is not caused or made worse by a service-connected disorder. CONCLUSIONS OF LAW 1. The Veteran does not have PTSD that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011). 2. The Veteran does not have GERD that is the result of disease or injury incurred in or aggravated by active military service; nor is GERD proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in January 2005, April 2005, and August 2005 from the RO to the Veteran, which were issued prior to the RO decision in October 2005. Additional letters were issued in January 2009, May 2009, May 2010, August 2010, and February 2012. Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. It also appears that all obtainable evidence identified by the Veteran relative to the claims decided herein has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, that would need to be obtained for a proper disposition of these claims. It is therefore the Board's conclusion that the Veteran has been provided with opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. The Veteran has been afforded VA examinations on the issues decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the service connection issues addressed in this decision. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence under the VCAA. Therefore, no useful purpose would be served in remanding these matters for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Background The Veteran served on active duty from January 1961 to February 1964. The Veteran's DD Form 214 indicates that his military occupational specialty was light weapons infantry; he was awarded a Parachute Badge. The Veteran's service personnel records include his individual jump log showing, in pertinent part, that on October 20, 1961, he had a parachute jump in full combat gear at Ft. Jackson, South Carolina, while attached to Company D, 2nd Airborne Battle Group, and 501st Infantry. The Veteran's STRs show no complaints of, or treatment for, GERD or PTSD. The Veteran's claim for service connection for PTSD and GERD (VA Form 21-526) was filed in December 2004. Submitted in support of the claim was a PTSD questionnaire wherein the Veteran described several stressful incidents that occurred during service. The Veteran reported one incident that occurred while making a parachute jump at Fort Jackson in South Carolina in 1963. The Veteran related that they were given the green light to jump and there were some high winds that day; as a result, they missed the drop zone and were blown off into the forest and brush. The Veteran stated that he was dragged and got caught in between some bushes. The Veteran related that his parachute had opened and started choking him when an officer collapsed the parachuted and helped him out of it. He noted that a few people were injured and some even died during that incident. The Veteran recalled another incident that occurred while he was on leave from basic training with a few friends; they were involved in a car accident during which he was thrown out of the car and knocked unconscious. A friend was killed. The Veteran reported another incident that occurred in May 1961, while attached to Company E, 1st Battle Group, 13th Infantry, stationed at Fort Riley, Kansas, he was on the machine gun firing range during Advanced Infantry Training as one of the personnel tasked with raising targets from a concealed trench or foxhole downrange so that gunners could practice their shooting skills. During this training, one of the soldiers assigned to this task was accidentally shot in the head and killed. The Veteran reported being horrified at viewing the head wound of the accidental shooting victim. He reported still another incident that occurred during service at Fort Bragg in 1963 which he found to be stressful. The Veteran indicated that his platoon seargant was a jumpmaster on a jump when a jumper froze in the door; his seargant had to push the jumper out. The Veteran recalled that the jumper was pushed, he reached back to grab something but accidentally grabbed the sergeant's static line deploying his parachute and it went out the door. The prop blast pulled the sergeant from the plane decapitating him. The Veteran was afforded a VA examination in July 2005 for evaluation of his esophagus. It was noted that the Veteran had had severe GERD for a period of 4 to 5 years up until the past 2 years. Following the examination, the examiner reported a diagnosis of GERD, moderately severe, adequately treated. The examiner stated that if the Veteran was found to have PTSD, it was as likely as not that this was a source of his GERD. The Veteran was also afforded a VA psychiatric examination in July 2005. It was noted that he served with the 501 Battle group, 82nd Airborne Division; his military occupational specialty was as an airborne infantryman. It was reported that the Veteran spent no time in combat. Following a mental status examination, the reported diagnoses were alcohol abuse, and mild depressive disorder. The examiner noted that the Veteran's mental status examination was unremarkable except for a compromise in remote memory, insight and judgment. The examiner stated that, based upon the Veteran's interview and information presented, he could not give a conclusive diagnosis of PTSD. Of record is a lay statement from the Veteran's father, dated in November 2005, wherein he described the effects of several incidents on the Veteran. He recalled an incident that occurred when the Veteran was home on leave in April 1961 and he went out with a few friends; he noted that the car in which they were riding lost control and hit a telephone pole, killing a close friend who had been sitting next to the Veteran. He also reported that the Veteran became an Army paratrooper and, during a special airborne exercise staged for some dignitaries, the wind changed course and caused dangerous conditions that were ignored. Consequently, several men were injured during the exercise and the Veteran was nearly killed, causing him a lot of fear and stress. Submitted in support of the Veteran's claim was a copy of a newspaper article from the Denver Post, dated October 21, 1961, which reported that "a mountain casualty list showed 21 paratroopers hospitalized Saturday with injuries caused by quickening winds that swept most of 1,200 jumpers into trees during a mass jump that opened Exercise Apache." It was noted that the jumpers were members of the 2nd Battle Group 501st Infantry 82nd Airborne Division entering a test of battlefield mobility Friday in the three-day training exercise. Received in February 2007 were VA progress notes dated from July 2005 to January 2007. These records do not reflect any diagnoses of PTSD. These records reflect treatment for GERD. In May 2009, pursuant to the prior Board remand of December 2008, VA contacted the Joint Services Records Research Center (JSRRC) and requested verification of this stressor. JSRRC responded in June 2009 that it was unable to locate the Veteran's unit records as it did not maintain copies of the 1963 military records submitted by the unit and recommended that a military records search request be made of the National Personnel Records Center (NPRC) in St. Louis, Missouri, concerning the casualties sustained during the ill-fated jump. In response to a request for information, in February 2012, JSRRC stated "we researched the historical information available to this agency. This information documents that at least 15 soldiers were injured during a parachute drop by the 2nd Battle Group, 501st Infantry, and 82nd Airborne Division at Fort Jackson on October 20, 1961." However, they indicated that they were unable to document the deaths of any soldiers during that drop. The Veteran was afforded a VA examination in February 2012. The Veteran reported several stressors, including a parachuting incident, auto accident, and he witnessed a soldier being shot in the head and killed while in Advanced Infantry training. The examiner stated that, based on today's examination, the Veteran did not have a diagnosis of PTSD that conforms to DSM-IV criteria. The examiner noted that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under DSM-IV criteria. He further noted that the Veteran does not have a mental disorder that conforms to DSM-IV criteria. The examiner stated that, while the Veteran does have some significant symptoms of PTSD, he only experiences one symptom in criteria C. The examiner explained that three symptoms in criteria C must be found to diagnose PTSD by DSM-IV standards. III. Analysis Service connection may be awarded for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1131. To establish a right to compensation for a present disability, a Veteran must show: "(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"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2011). Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Unless it is determined that a veteran was engaged in combat with the enemy and the claimed stressor is related to such combat, the Veteran's alleged stressor(s) generally must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). However, if the claimed non-combat stressor is related to the veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f) (3)); 75 Fed. Reg. 41 ,092 (July 14, 2010) (correcting the effective date of the rule published on July 13, 2010). Service connection may also be established for disability that is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a) (2006); See Harder v. Brown, 5 Vet. App. 183, 187 (1993). An October 2006 amendment to 38 C.F.R. § 3.310 sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen v. Brown, 7 Vet. App. 439 (1995) (which allowed for secondary service connection on an aggravation basis), it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the recent change amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. 38 C.F.R. § 3.310 (2006). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that § 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). (The Board recognizes that the Court has held that the presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007).) A veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. PTSD The Board finds that service connection for PTSD is not warranted. JSRRC has verified one of the Veteran's reported in-service stressors. Nevertheless, the Board notes that a key element to establishing service connection is to show that the Veteran has the claimed disability. This element may only be shown through evidence of a diagnosis. See 38 C.F.R. § 3.304. The Board notes that the Veteran does not have a diagnosis of PTSD; that is, the evidence of record shows no diagnosis of PTSD. Significantly, following a VA psychiatric examination in February 2012, the VA examiner stated that, while the Veteran does have some significant symptoms of PTSD, he only experiences one symptom in criteria C, but three symptoms in criteria C must be found to diagnose PTSD by DSM IV standards. Consequently, the Board finds that the Veteran does not in fact experience PTSD. The preponderance of the evidence is against this claim. The only evidence in support of the Veteran's claim are his own contentions that he experiences symptoms he believes to be representative of PTSD. The Board notes that under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Certainly, the Veteran is competent to describe symptomatology and, to this extent, his assertions are entitled to some probative weight. However, there is no indication that the Veteran possesses the requisite medical knowledge or education to render a probative opinion on complex medical matters, to include attributing his symptoms to a specific psychiatric disability. See Layno v. Brown, 6 Vet. App. 465 (1994). Consequently, his statements regarding the claimed condition are outweighed by the opinion of the VA examiner who conducted his examination. As noted, the VA examiner considered the Veteran's description of stressful events in service, and his reported problems with irritability, nightmares, and exaggerated startled response. Nevertheless, following a thorough mental status examination, the examiner stated that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD, or for that matter any psychiatric disease. As such, the Veteran's claim for service connection for PTSD is denied. In sum, the preponderance of the evidence is against finding that the Veteran has PTSD. Under these circumstances, the Board must conclude that the Veteran has not met the regulatory requirements for service connection for PTSD, and that, on this basis, his claim must be denied. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. GERD After reviewing the evidence of record, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for GERD. In this regard, service treatment records (STRs) are completely silent with respect to any complaints of, treatment for, or diagnosis of a gastroesophageal disorder. The Veteran did not report any history of a gastrointestinal disorder in the report of medical history provided by him at the time of his separation examination in January 1964, and his physical examination revealed a normal abdomen and viscera. In addition, the earliest diagnosis of GERD was in July 2005, more than 41 years following the Veteran's discharge from service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The absence of evidence of gastrointestinal complaints, findings, or diagnosis, in the many years post-service constitutes negative evidence tending to disprove that the Veteran suffered from gastrointestinal problems from service onward. 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). Moreover, the competent evidence does not establish that any diagnosed GERD began in service. There is no documented continuity of symptomatology following service. There is no record of any symptoms even intermittently from his separation from service forward. Rather, the record does not reflect a diagnosis of a GERD until decades after his discharge from service. The record is devoid of competent evidence showing a link between service and GERD. See generally Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (normal medical findings at the time of separation from service, as well as absence of any medical records of a diagnosis or treatment for many years after service, is probative evidence against a claim). The Board has not found that the Veteran had experienced continued symptoms since service, especially in light of the absence of problems documented clinically, and because no claim was filed, even in 1984 when the Veteran sought service connection for other disability. Even the Veteran has contended that the GERD was the product of another disability and did not originate in service. Turning to the Veteran's claim of secondary service connection, as discussed above, the Board has found that entitlement to service connection for PTSD is not warranted. Thus, as a matter of law, the Veteran's claim for service connection for GERD as secondary to PTSD must fail. Insofar as the condition to which the Veteran claims this disability is secondary has not been service connected, the claim for secondary service connection must also fail. See 38 C.F.R. § 3.310. For this reason, the Veteran's claim for secondary service connection must be denied as without legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim based on a lack of legal merit). The only other evidence of record suggesting a connection between the Veteran's GERD and his military service or to a service-connected disability is the Veteran's own opinion. However, there is no evidence of record showing that he has the specialized medical education, training, and experience necessary to render competent medical opinion as to the etiology of a GERD. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a) (1) (2011). Consequently, the Veteran's own assertions as to the etiology of his GERD have no probative value. ORDER Service connection for PTSD is denied. Service connection for GERD is denied. REMAND Under VA's duty to assist, VA is obliged to perform a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A (d) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c) (4) (2011). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). After examining the record, the Board concludes that further assistance to the veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5103A. The specific bases for remand are set forth below. As to the claim of service connection for a back disorder, STRs indicate that the Veteran was involved in an automobile accident on April 18, 1961; at that time, it was noted that he had a sore neck. The impression was paracervical muscle strain. On April 20, 1961, it was reported that the Veteran sustained soreness in his legs and back with laceration during the motor vehicle accident; he complained of cervical and thoracic pain. Upon x-ray study of the spine, it was noted that there was no definite evidence of abnormality in the thoracic area; however, there may have been a wedging of the 1st lumbar vertebral body, approximately 20 percent or less. Post-service records include a VA examination report dated in April 1985 which reflects a diagnosis of degenerative disc disease, lumbar spine with chronic lumbar strain and left sciatic radiculopathy. The Veteran was afforded examination in July 2005. At that time, the examiner stated that the current back condition experienced by the Veteran is not that for which he was treated while on active duty in the United States Army. As such, the examiner stated that the association of his current low back condition with a motor vehicle accident while on active duty cannot be resolved without resorting to speculation. On the occasion of a subsequent VA examination in July 2009, the examiner stated that, with currently available information, he was unable to find evidence of compression fracture, lumbar spine injury or lumbar spine problems while the Veteran was in military. The examiner stated that, with currently available information, it would be speculation for him to relate the Veteran's currently present back disability to disease or injury in service. A mere recitation by the VA examiner that he or she cannot provide a medical opinion without resort to speculation by itself is not dispositive, where there is no clearly obvious rationale offered for why this was the case. See Jones v. Shinseki, 23 Vet. App. 382, 290 (2010) (noting that before relying on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the review of the evidence). In this case, while the VA examiner noted that the Veteran was involved in a motor vehicle accident in April 1961, he did not take into account the Veteran's contention that, after the incident, he went to finish jump school and continued to experience low back pain during the remainder of his period of military service. Further, the examiner did not provide an explanation for why he could not resolve the issue of the etiology of the Veteran's diagnosed back disorder without resorting to speculation. He did not identify what additional evidentiary development might have led to a non-speculative opinion, or offer any other rationale for his inability to provide a nexus opinion; nor did he identify any further relevant information that should be obtained to facilitate a non-speculative determination. See Jones v. Shinseki, 23 Vet. App. 383, 389 (2010). The Board thus finds that the July 2009 VA examiner's opinion is inadequate. In this regard, the Board notes that any medical opinion, including one that states that no conclusion can be reached without resorting to speculation, must be based on sufficient facts and data. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court found that a medical opinion which only contains data and conclusions, and is not supported by reasons or rationale is accorded no probative weight. See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). On remand, the Veteran should be provided another VA examination to determine the nature and etiology of any current back disorder, taking into account all the pertinent evidence, including the Veteran's lay statements as to continuity of symptoms since service. The case is REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. The AOJ should obtain the names and addresses of all medical care providers who treated the Veteran for his claimed back disorder, especially in the years immediately after his military service. After securing the necessary release(s), the AOJ should obtain these records. If the records are not available, a notation to that effect should be placed in the claims file and the Veteran should be given opportunity to obtain the records. 2. Thereafter, the AOJ should arrange for the Veteran to undergo a VA examination so as to ascertain the nature and etiology of his back disorder(s). The entire claims file, to include a copy of this remand, must be made available to the examiner. A discussion of the Veteran's medical history and assertions should be included. All tests or studies deemed necessary by the examiner should be accomplished, and all clinical findings should be reported in detail. The examiner should identify all disorders of the low back. For each disorder, the examiner must provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (50 percent or greater probability) that the disorder found on examination is attributable to military service, to include the in-service automobile accident in April 1961. In doing so, the examiner must consider the Veteran's statements, as well as the lay statements in support of the Veteran's claim, regarding the onset and continuity of his symptomatology. The medical reasons for accepting or rejecting the Veteran's statements regarding continuity should be set forth in detail. All opinions should be explained in the context of the record. If the examiner determines that he/she cannot provide an opinion on an issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of disease or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definite opinion can be obtained.) 3. To help avoid future remand, the AOJ must ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be taken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the AOJ should readjudicate the Veteran's claim on the basis of all evidence of record and all applicable laws and regulations. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided an SSOC, which includes a summary of additional evidence submitted, and any additional applicable laws and regulations. The SSOC must provide reasons and bases for the decision reached. Thereafter, the Veteran and his representative should be given the opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs