Citation Nr: 1306909 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 00-20 649A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for the residuals of a right knee injury. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to nonservice-connected pension benefits, to include basic eligibility. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran had a period of service from November 16, 1971, to February 19, 1972, following discharge from a Reserve Officers' Training Corps (ROTC) program, which has been characterized by the National Personnel Records Center (NPRC) as active duty for training (ACDUTRA). Service records associated with the claims file show the Veteran attended the U.S. Army Infantry School at Fort Benning, Georgia, during this time period for the training of Reserve officers appointed from the ROTC. Following completion of the November 16, 1971, to February 19, 1972, period of service, the Veteran enlisted in the U.S. Army Reserve and thereafter served additional verified and unverified periods of Reserve service. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, in August 2000, January 2001, and May 2003. In the August 2000 rating decision, the RO denied a claim of entitlement to service connection for a cervical spine disorder. In the January 2001 rating decision, the RO denied a claim of eligibility for nonservice-connected pension. The Board remanded these two claims in July 2003. In a May 2003 rating decision, the RO reopened the Veteran's previously denied right knee claim, but found that service connection was not warranted on the merits. In December 2004, the Board also found that new and material evidence had been received and reopened the claim. The Board then remanded all three claims for additional development. In a May 2007 decision, the Board denied these claims, but the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2008 memorandum decision, the Court vacated the Board's decision and remanded the matter for further proceedings. Judgment was subsequently promulgated by the Court in December 2008. Subsequently, in August 2009, the Board remanded the case to the RO for further development. When the case was returned to the Board, it denied the claims in a January 2011 decision. The Veteran again appealed to the Court. In an April 2012 memorandum decision, the Court vacated the Board's January 2011 decision and remanded his three claims for further proceedings consistent with its decision. The Court's mandate issued in July 2012. These claims are now before the Board to implement the Court's decision. The issues of entitlement to service connection for a cervical spine disorder and entitlement to nonservice-connected pension benefits are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if additional action is required on his part. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the evidence shows that residuals of his right knee injury, diagnosed as subchondral erosion and degenerative joint disease, are related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for the residuals of a right knee injury, diagnosed as subchondral erosion and degenerative joint disease, have been met. 38 U.S.C.A. §§ 101(21), 101(24), 106, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The provisions of the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and interpreted by the Court. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Given the determination reached in this decision, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for resolution of the claim for service connection for the residuals of a right knee injury without detriment to the due process rights of the Veteran. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110. ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or the National Guard of any State. 38 C.F.R. § 3.6(d). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. The presumptions of service connection found under §§ 3.307 and 3.309, to include those related to the presumption of soundness and aggravation, do not apply to periods of ACDUTRA and INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991); Smith v. Shinseki, 24 Vet. App. 40 (2010); Donnellan v. Shinseki, 24 Vet. App. 167 (2010). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a 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 only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When 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). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that 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). 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, (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Factual Background and Analysis The Veteran seeks service connection for the residuals of a right knee injury. He asserts that he injured his right knee during ROTC training in July 1970, when he fell on a sharp stick which impaled his knee and required stitches. He claims that current residuals of this right knee injury are, therefore, service connected. In a September 1997 filing the Veteran asserted that he was in full battle gear under command and in the field at Fort Riley when the accident occurred and that he has had no other knee injury to date. He also said that he used a cane and was prescribed a knee brace due to the injured knee. The Veteran enrolled in ROTC at Kansas State College of Pittsburg in Pittsburg, Kansas. He graduated with his undergraduate degree in May 1971, less than one year after he sustained the knee injury during ROTC service. Service treatment records reflect that the Veteran sustained a leg injury in July 1970 during tactical training at ROTC summer camp. The leg injury required five stitches, although the exact location of the injury was not described in the service treatment records. A request for waiver dated July 27, 1970, by the ROTC commander at Fort Riley, Kansas, requested a waiver for the Veteran regarding the requirement to complete the physical combat proficiency test that day because the Veteran had sustained a leg injury during tactical training on July 16, 1970. Although stitches were to be removed this date, the wound would not be sufficiently healed to permit participation in the test. With respect to the Veteran's ROTC service, the Board notes that the law specifically defines ROTC cadets as falling under either active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) during training (as distinguished from cadets at the federal service academies or candidates at the preparatory schools of the federal service academies, who are specifically defined as being in "active duty" status). See 10 U.S.C.A. §§ 2101 et seq.; 38 C.F.R. § 101(22)(D). The Board finds that the clear meaning of the statute is that ROTC cadets are not on "active duty" at any time during their cadetships. Here, the Board acknowledges that the fact the Veteran was service-connected in a July 1997 rating decision for a right knee scar attributable to an injury he received during ROTC tactical training indicates that the time of injury, July 16, 1970, was a period of INACDUTRA as that duty status would be required in order for service connection to be granted. June 2006 correspondence from the military science department of Pittsburg State University indicates that the Veteran was a graduate and was commissioned a second lieutenant through the ROTC program. The professor who drafted the letter stated that cadets are required to successfully complete a Leader's Training Camp during the summer between their junior and senior year prior to being commissioned. July 1970 was during the summer between the Veteran's junior and senior year. Therefore, the Board can properly assume that the Veteran injured his knee during the Leader's Training Camp to which the professor referred. Service treatment records for the November 1971 to February 1972 period are devoid of complaints of a right knee disorder. In fact, the Veteran's entry-into-duty examination on November 23, 1971, and his separation examination of February 8, 1972, showed no abnormalities of the lower extremities during this period of ACDUTRA. Later periodic examinations for Reserve service purposes contain no evidence of a right knee disorder. A June 1997 VA examination concluded that the Veteran had no right knee disorder, other than a right knee scar for which service connection had been granted. The Veteran, however, told the examiner that he had recurrent pain since the knee injury that was exacerbated by cold weather, prolonged standing, and physical activity. A July 1997 VA treatment record noted that the Veteran had intermittent knee pain since the knee injury in service. A March 1998 VA medical record noted that the Veteran had right knee pain for many years, but it had been getting worse over the past year. Impression was right knee degenerative joint disease. An October 1998 memorandum by Dr. J.A.P. at VA noted that the Veteran had a knee disease, including patella chondromalacia, meniscal cyst, and subchondral erosion. An October 1998 magnetic resonance imaging (MRI) scan at VA showed degenerative joint disease of the right knee, including minimal subchondral erosion and thinning of the articular cartilage of the lateral femoral condyle. A private medical statement by Dr. M.S. dated in November 1998 and apparently prepared in connection with an examination related to the Veteran's application for SSA disability benefits indicated there was a connection between right knee degenerative osteoarthritis and the Veteran's service injury when a bungee stick went through his right knee. In a handwritten statement received in May 1999, the Veteran complained that VA had granted service connection for a right knee scar, which was the result of the knee injury for which he also sought further compensation. A September 1999 VA medical record noted a diagnosis of relatively mild degenerative joint disease of the right knee by X-ray findings. In a May 2000 independent medical evaluation, Dr. L.J., Jr., stated that clinical findings linked the Veteran's current knee disability to his July 1970 ROTC injury when a "bungy stake" entered into his knee. The Veteran complained of increasing problems with knee pain since service and that he was unable to run, although he was able to function on a regular basis. He now had pain with sitting, prolonged standing or walking, and cold intolerance. The only other knee injury occurred due to the knee giving way when he had episodes of falling. Dr. L.J. stated that he had no doubt of a relationship, or nexus, between the current knee disorder and the July 1970 service injury. Dr. L.J. also noted that the fact that the Veteran had gone for quite some time without increasing severity of pain was also well explained due to how well youth handle cartilage injuries. The Veteran underwent a VA examination in October 2000. Diagnosis was status post injury to right lateral femoral condyle, with residual pain. It was also noted that a MRI scan of the right knee showed subchondral erosion consistent with the Veteran's residual pain. The VA examiner also included here a reference to the May 2000 private report of Dr. L.J., but provided no medical opinion on whether the knee injury was related to service. However, the same examiner on the same date in a separate VA examination of the right knee scar stated that the Veteran appeared to have some disability due to the right knee injury in service and that the Veteran's disability was due more to the subchondral erosion than to the scar. January 2001 X-ray studies at VA showed minimal early degenerative change in the posterior patella with an otherwise normal right knee. A February 2001 private MRI scan of the right knee showed degenerative change of the posterior horn of the medial meniscus; small joint effusion; and changes of chondromalacia involving the lateral compartment. A March 2001 VA follow-up in the orthopedic clinic showed an assessment of right knee pain with history consistent with meniscus tear as well as an articular cartilage defect of the lateral femoral condyle, likely due to a service-related injury. A July 2001 VA record review showed that any current right knee disorder probably did not result from the Veteran's right knee injury in July 1970. The VA reviewer thought that the meniscal changes were simply due to wear and tear. This VA reviewer also opined that the subchondral erosion noted on the MRI scan was not due to any penetrating wound which occurred while the Veteran was in service. However, the Court noted in its April 2012 decision that the Board in 2004 found that the July 2001 VA examination was inadequate. A September 2002 decision by an administrative law judge with the Social Security Administration (SSA) is found in the claims file and shows the Veteran's entitlement to SSA disability benefits as of August 1997 for such severe impairments as: obesity, glaucoma, depression, and degenerative joint disease of the right knee and right ankle. An April 2004 VA medical record noted an assessment of right knee meniscal tear. It was also noted that the Veteran did not wish to have knee surgery. A June 2005 VA medical record noted a diagnosis of chondromalacia of patella and possible meniscus tear. An August 2005 VA medical record noted that a recent steroid injection helped quite a bit to relieve pain and that the Veteran said that he had been told in the past by previous orthopedic residents that he might ultimately need a total knee arthroplasty although joint spaces in recent X-ray studies appeared to be fairly well maintained. VA medical records dated in September 2005 and March 2006 noted an assessment of right knee pain, osteoarthritis and history of a meniscal tear. The Veteran underwent a VA examination in August 2006. This examiner tended to believe that any degenerative changes in the Veteran's right knee were probably a reflection of his being a little overweight. The examiner stated that he did not think they were due to the wound the Veteran received in the 1970s. However, the Court found this opinion inadequate in its November 2008 decision. Thus, the Veteran was scheduled for a VA examination in February 2010. The Veteran's attorney has argued this examination and opinion are inadequate in briefs dated in September 2010 and September 2012. The Court remanded this matter in April 2012 for the Board to consider whether this VA examination was inadequate. Upon review, the Board must find that the February 2010 VA examination is inadequate because the examiner relied on an inaccurate factual assumption. The February 2010 VA examiner premised his opinion on an assumption that the Veteran's right knee symptoms did not become severe for 25 years after the injury and also reported that no symptoms manifested for 25 years. However, the Veteran has reported symptomatology since the knee injury in 1970 and also stated that he thought he first sought medical attention in the late 1970s or early 1980s. The Veteran states in a March 2010 statement that his symptoms were only ameliorated during that 25-year period because he avoided activities that would elicit those symptoms. His lay evidence of knee pain since the service injury is found in the claims file. The Veteran's attorney has also pointed out that the February 2010 VA examiner discussed other risk factors for degenerative joint disease, such as obesity and diabetes, but did not explain why those risk factors only affected the right and not the left knee. In addition, counsel has objected that the February 2010 VA examiner relied on a study that did not address the Veteran's actual symptoms. The Board also notes that at one point the February 2010 VA examiner appeared to concede that it was not really known whether it is possible for one to have a femoral chondral injury without the development of significant symptoms for 25 years or whether such an injury would only show the minimal findings as noted in this case after 25 years. After reviewing the report of the February 2010 VA examination of the right knee and the objections of the Court and the Veteran's attorney, the Board must find that the February 2010 VA examination is also inadequate for adjudication purposes. In a signed statement dated in March 2010, the Veteran stated that between the time of his knee injury in 1970 and subsequent treatment in the mid-1990s there were significant symptoms present. In those years, the Veteran said that he minimized his knee symptoms by avoiding any activities such as climbing stairs, running, and playing sports that would aggravate his knee symptoms. He stated that the reason he had very few symptoms during those years was that he avoided activities that would cause the symptoms to flare up. Based upon a review of all the evidence of record, the Board finds that service connection for the residuals of a right knee injury is warranted in this case. Initially, the Board notes that the Veteran currently has been diagnosed with subchondral erosion and degenerative joint disease of the right knee. Accordingly, the first requirement for service connection is met as the Veteran has been diagnosed with a current disability. Service treatment records also document his incurrence of a right knee injury during ROTC tactical training in July 1970 before he was commissioned a Reserve officer. Although the RO never determined the Veteran's actual duty status at the exact time that the Veteran injured his right knee, VA laws and regulations cited above make clear that service connection is available for an injury incurred during ACDUTRA or INACDUTRA. See 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). There is no doubt that falling in full battle gear in the field and being punctured by a bungee stick in the knee area is an injury eligible for service connection. Therefore, the Board finds that the second requirement for service connection is also met for this claim. With respect to the third requirement, the Board acknowledged in its decision of May 2007 that competent medical evidence both supported and refuted the Veteran's knee claim. At the time the Board found the most weight should be given to examinations which have now been judged to be inadequate. The evidence in support of the Veteran's claim included a November 1998 private medical statement by Dr. M.S. that indicated there was a connection between right knee degenerative osteoarthritis and the Veteran's in-service injury. In addition, the May 2000 private medical statement from Dr. L.J. provided an opinion that the Veteran's current right knee disorders, including subchondral changes along the femoral condyle, were consistent with a direct impact injury to the lateral femoral condyle. Similarly, the October 2000 VA examiner concluded that the Veteran's complaints of pain were consistent with subchondral erosion of the lateral femoral condyle, related to injury to the lateral femoral condyle. The evidence against the Veteran's claim included a July 2001 VA medical opinion, the August 2006 VA examination, and now the February 2010 VA examination. As noted above, however, all of these examinations have been found inadequate. The Board finds that under the circumstances of this case, and upon granting the Veteran the benefit of the doubt, the May 2000 independent medical opinion of Dr. L.J., when taken together with the comments of Dr. M.S. in November 1998 and those of the October 2000 VA examiner as well as the credible lay evidence of the Veteran, are sufficient to provide proof of a nexus, or relationship, between the Veteran's currently diagnosed right knee degenerative joint disease and subchonral erosion and his period of INACDUTRA in July 1970. No doubt further inquiry could be undertaken with a view towards development of the claim, perhaps by seeking clarification from the February 2010 VA examiner or by obtaining a new medical opinion. However, resolving all reasonable doubt in the Veteran's favor, the Board will find that the third requirement for service connection on a direct basis is met in this case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which satisfactorily proves or disproves the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In view of the above, and in affording the Veteran the benefit of the doubt as the law requires, the Board finds that service connection is warranted for the Veteran's claim for service connection for the residuals of a right knee injury. As the Board finds that the Veteran has provided evidence of all three elements required for a grant of service connection for his claim, the claim for service connection for the residuals of a right knee injury is granted. ORDER Service connection for the residuals of a right knee injury, diagnosed as subchondral erosion and degenerative joint disease, is granted. REMAND Unfortunately, a remand is required for the remaining claims on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). In its April 2012 memorandum decision, the Court found that the Board's denial of the Veteran's cervical spine and knee claims in the January 2011 Board decision was in error because the Board did not provide an adequate statement of its reasons or bases for its findings and conclusions. The Court found that the Board had not considered the attorney's September 2010 brief (which apparently had been sent to the RO and placed in a temporary file) and that the February 2010 VA examiner and the Board should have discussed lay evidence from the Veteran concerning his claimed disorders. The Court's opinion noted that these lay statements appeared to be relevant, material, and favorable to the Veteran's claims and strongly suggested that the February 2010 VA examination was inadequate. As noted above, the Board has found the February 2010 VA examination related to the Veteran's right knee disorder was inadequate, in part, because the examiner relied on medical evidence to the exclusion of the Veteran's credible lay evidence of symptomatology since his inservice injury. After the VA examination of the Veteran's cervical spine claim in February 2010, the Veteran submitted a signed statement dated in March 2010 in which he stated that before service he had various symptoms, including intermittent neck discomfort, but that after wearing a helmet in service the frequency and severity of these symptoms increased, leading to treatment and being put on profile. When he stopped wearing the helmet, the Veteran further stated that his symptoms became less severe and less frequent but did not return to the level he had before he started wearing the helmet. He said that the severity and frequency of his neck symptoms has never to this day returned down to the level he had before he wore a helmet. In addition to the Court remand, the Veteran's attorney has argued the February 2010 examination related to the cervical spine was inadequate in briefs dated in September 2010 and September 2012. Upon review, the Board must find that the February 2010 VA examination of the cervical spine is inadequate because the examiner relied, in part, on the absence of medical records from 1972 to 1990. The February 2010 VA examiner appears to premise his opinion that the Veteran's preexisting neck disorder was not aggravated during service on the little documentation of increased medical attention to the neck until 1990. Relying on the absence of evidence in medical records to provide a negative opinion is contrary to established case law, see Dalton v. Nicholson, 21 Vet. App. 23 (2007), and therefore inadequate. Further, the credibility of lay statements may not be refuted solely by the absence of corroborating medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service, if credible, may be competent, regardless of the lack of contemporaneous medical evidence). In opining that the Veteran's preexisting cervical spine disorder was not aggravated during the Veteran's period of ACDUTRA from November 1971 to February 1972, the February 2010 VA examiner also did not discuss the comments of service medical personnel in 1971 that the Veteran's preexisting neck disorder was aggravated during service. The examiner also indicated that torticollis could cause cervical disc degeneration and radiculopathy but did not clearly explain why in this case torticollis was not aggravated in service even if it might have caused disc degeneration. After reviewing the report of the February 2010 VA examination of the cervical spine and the objections of the Court and the Veteran's attorney, the Board must find that the February 2010 VA examination of the cervical spine is inadequate for adjudication purposes. While the Board found there was sufficient evidence with which to grant service connection for the Veteran's knee claim (see above), it finds that the posture of his service connection claim for benefits for a cervical spine disorder is much different. This service connection claim is concerned with whether a preexisting disorder was aggravated during service. A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306. In the wake of the Court's critical opinion regarding the February 2010 VA examination, the Veteran's attorney submitted an August 2012 independent medical opinion related to the Veteran's cervical spine claim from Dr. M.B. of St. Anthony Neurosurgery in Oklahoma City, Oklahoma. Unfortunately, it appears from the text of Dr. M.B.'s August 2012 report that his opinion is based on an inaccurate factual premise, namely that the Veteran wore a steel helmet for four months during the entire time of his period of ACDUTRA, between November 16, 1971 and February 19, 1972. Dr. M.B. wrote that the Veteran wore a steel helmet on active duty for a period of about four months, which apparently aggravated his symptoms. However, Dr. M.B.'s statement ignores the fact this period of ACDUTRA was for only three months and other evidence that he was placed on profile and excused from wearing a steel helmet for 90 days, effective as early as January 13, 1972. In addition, Dr. M.B.'s August 2012 medical opinion also failed to take account or at least discuss the notations found in the February 1972 discharge examination to the effect that while traction treatments were taken to relieve some muscle tension in the neck and back no significant abnormalities were noted. The Board also notes that in 2004 it found the July 2001 VA examination inadequate. In its November 2008 decision, the Court found that the August 2006 VA examination was inadequate. Therefore, as regards the cervical spine claim the record does not contain an adequate examination either in favor of or opposed to the Veteran's claim of aggravation. When an examination report is inadequate, the Board should remand the case for further development. Bowling v. Principi, 15 Vet. App. 1, 12 (2001). Therefore, on remand the RO should ensure that the February 2010 VA examiner renders an opinion consistent with the instructions in this Remand or, in the alternative, the Veteran is scheduled for another VA examination and medical opinion. Finally, the Court found in regard to the claim of nonservice-connected pension benefits that that issue was inextricably intertwined with the appellate claim for benefits for the cervical spine, and that resolution of the cervical spine claim could determine whether the Veteran was entitled to pension benefits. Therefore, as the Board herein is remanding the Veteran's claim for service connection for a cervical spine disorder for further development in line with the Court's April 2012 memorandum decision, his claim for entitlement to nonservice-connected pension benefits is also remanded for adjudication after a final decision is reached on whether the Veteran is entitled to benefits for his cervical spine claim. Accordingly, the case is REMANDED for the following action: 1. Copies of updated treatment records, VA and non-VA, should be obtained and added to the claims folder. 2. Following completion of the above, the claims file shall be forwarded to the February 2010 VA cervical spine disorder examiner for clarification. If the February 2010 VA examiner is not available, then the Veteran should be afforded an examination to address whether his cervical spine disorder was aggravated during service. The claims folder must be made available to the examiner for review of pertinent documents in connection with the examination; the examiner must indicate that the claims folder was reviewed. The February 2010 examiner, or the appropriate examiner conducting a new examination, is requested to provide an adequate opinion that avoids the difficulties outlined in the Court's April 2012 decision related to the February 2010 examination, such as: relying on the absence of medical evidence from 1972 to 1990 when presenting a negative opinion; not treating lay evidence of symptomatology as credible or as probative as other evidence; and failing to discuss the notation of service medical personnel in 1971 that symptoms of the Veteran's neck disorder were aggravated in service by wearing a steel helmet. In addition, the examiner should clarify the current diagnosis-torticollis and/or cervical disc degeneration-and should offer an opinion whether it is at least as likely as not (50 percent or greater probability) that either was aggravated, i.e., permanently worsened, during the period of military service from November 1971 to February 1972, beyond the natural progression of the disorder. The examiner should consider the February 1972 separation examination notation of chronic pain in the cervical region and comment on whether he or she agrees or disagrees with the comments and observations found in the August 2012 independent medical opinion of Dr. M.B. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Thereafter, the RO is to review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that such is responsive to and in compliance with the directives of this remand and, if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the claims file. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his attorney should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the last SSOC in August 2010, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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). 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. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs