Citation Nr: 1307206 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-33 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a neck disability, to include cervical strain. ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from June 1999 to February 2001 and from June 2007 to June 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the claim on appeal. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is seeking entitlement to service connection for a neck disability, to include cervical strain. A review of the claims file reveals that a remand is necessary before a decision on the merits can be reached for this issue. The Veteran claims that he injured his neck in service in November 2007 when there was an explosion while riding a Humvee that caused the Veteran's head to strike the window. The Veteran's service treatment records do not include complaints, treatment, or diagnosis of a neck disability during his first period of active duty service. The Veteran does not contend that his current neck problems stem from any incident during his first period of active service. In the interim between periods of service, the Veteran was involved in a car accident in January 2005 with subsequent neck and left shoulder pain. No diagnosis of a neck disability was made, however, and the neck pain resolved within weeks. A January 2006 Report of Medical Examination noted chronic low back pain, but included no reports of neck problems. In October 2006, after deployment to deal with the aftermath of Hurricane Katrina, the Veteran reported back pain, but did not report any neck problems. During the Veteran's second period of service, a June 2007 pre-deployment health assessment indicated that the Veteran's health was very good, but that he did have medical or dental problems. Unfortunately, the specific problems were not listed. In a subsequent, July 2007 pre-deployment health assessment, the Veteran stated that his health was good and that he had no medical or dental problems. In a July 2007 record, the Veteran specifically denied neck symptoms. In June 2008, the Veteran reported muscle aches and swollen, stiff, or painful joints, which were still bothering him. He rated his overall health as Good, but indicated that his health was much worse than before deployment. Also in June 2008 (while still in service), the Veteran filed a claim for entitlement to service connection for a neck condition. Two days later, (again while still in service), the Veteran reported "stiff and tightness, neck pain" for which he claimed to have seen a healthcare provider during deployment on sick call and which still bothered him. VA's duty to assist includes a duty to provide the Veteran with a proper medical examination or opinion when warranted. In this respect, in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, the Veteran was afforded a VA general medical examination in September 2008 for his orthopedic claims, including the neck. At that time, the Veteran reported that he injured his neck in November 2007, when a blast while riding in a Humvee threw his head against a window. The Veteran reported ongoing pain that he described as 8 out of 10. Following examination and testing, the examiner diagnosed cervical strain. The examiner, however, did not offer an opinion as to the etiology of the neck disability. Based on the evidence of record, the Board concludes that another VA examination is warranted to consider the etiology of the Veteran's neck problems, to include cervical strain. As to the McLendon requirements outlined above, the Veteran clearly has a current neck disability; the Veteran reported neck pain and tightness in June 2008 (while still in service) that he claimed to have experienced during his deployment to Iraq and continued to experience, which is suggestive of in-service incurrence or aggravation; and the Veteran filed his claim for entitlement to service connection for a neck condition while still in service. Given the close proximity of the diagnosed neck condition following separation (approximately three months), the Board concludes that there is at least a suggestion that the current cervical strain is related to the Veteran's military service. As will be discussed in greater detail below, while the Board does not find the Veteran's statements as to the cause and onset of neck problems to be credible, the fact remains that he did report neck symptomatology while still on active service and three months later was diagnosed with a cervical spine disorder, without any evidence of an intervening cause. The Board concludes, therefore, that the evidence of record meets the low threshold for a VA examination as outlined in McLendon and that a VA examination is necessary to consider whether the Veteran has a current neck disability that was incurred in or is otherwise related to his military service. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination) As referenced above, the Board finds extremely problematic the Veteran's contentions that his current neck problems stemmed from a November 2007 blast incident while riding in a Humvee. In that regard, in a June 2008 Traumatic Brain Injury (TBI) examination the Veteran specifically denied involvement during deployment in either a vehicular accident or blast or explosion (IED, RPG, Land Mine, Grenade, etc.) Moreover, the Veteran contends that at the same time he injured his neck in the November 2007 blast incident he also chipped a tooth. The service treatment records do note dental treatment in February 2008 for cleaning and a chipped tooth. At that time, however, the Veteran failed to report any neck problems and, indeed, stated that his only medication was Motrin for occasional back pain and did not otherwise report a blast incident involving a Humvee as the cause either of the chipped tooth or ongoing neck pain. The Board finds the Veteran's contemporaneous representations and the medical evidence of record substantially outweighs the Veteran's current representations as to an in-service blast incident involving a Humvee made in pursuit of a claim for compensation benefits. See Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, and desire for monetary gain). In light of the foregoing, the examiner should not consider to be credible the Veteran's allegations of a November 2007 Humvee blast incident. See Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for appropriate VA medical examination for his claimed neck disability, to include cervical strain. The claims file must be provided to the examiner for review and the examiner should note that it has been reviewed. Following a review of the relevant evidence in the claims file, obtaining a complete history from the Veteran, a clinical evaluation, and any tests that are deemed necessary, the examiner is asked to provide an opinion as to: a.) whether it is as least as likely as not (50 percent probability or more) that the Veteran's current cervical strain and any other diagnosed cervical spine or neck disability was incurred in, or is otherwise related to, his military service. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. b.) if the examiner concludes that any diagnosed cervical spine disability was the result of the January 2005 motor vehicle accident, then provide an opinion as to (i) whether there is clear and unmistakable evidence that the current cervical spine disability was incurred as a result of the January 2005 accident and (ii) whether there is clear and unmistakable evidence that any such pre-existing cervical spine disability was not permanently aggravated as a result of his military service from June 2007 to June 2008. The examiner is reminded that "clear and unmistakable" means that it is undebatable. As discussed above, in reaching his or her conclusions the examiner should not consider to be credible the Veteran's current representations of involvement in a November 2007 blast incident while riding in a Humvee. The examiner also is requested to consider, and discuss as necessary, the January 2005 reports of neck pain following a motor vehicle accident, the multiple subsequent treatment records prior to and early in his second period of active service with no evidence or complaints of neck problems (including instances where he reported problems with the low back), and the June 2008 reports of neck pain and tightness for which he claimed to have sought treatment during deployment to Iraq and which continued to bother him. The examiner should provide a complete rationale for any opinion provided. If the examiner determines that an opinion cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorder, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. After the above is complete, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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). _________________________________________________ BETHANY L. BUCK 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) (2012).