Citation Nr: 1308744 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-11 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to October 1954. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In May 2012, the Veteran testified at a Travel Board hearing held before the undersigned Veterans Law Judge, and a transcript of the hearing has been associated with his claims file. When the case was previously before the Board in November 2012, the issue was remanded for additional development. Also in the November 2012 Board decision, the Board granted entitlement to service connection for PTSD and major depressive disorder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND Additional development is required prior to Board review. While the further delay of this case is regrettable, due process and duty to assist considerations require such action. As noted in the prior remand, the Veteran claims that he injured his neck when someone fell on him while working on a boat and that he was in sick bay for a few days for that injury. He does not allege that the injury occurred during combat. He testified that he did not report any neck symptomatology at his separation examination because he wanted to go home. The service treatment records do not show any treatment for neck symptomatology. The Board has found the Veteran credible in his assertion that he witnessed the death of a fellow sailor and in his reporting of the in-service neck injury. As current disability was shown in VA treatment records containing an assessment of neck pain and in chiropractic treatment records for neck symptomatology, a VA examination was deemed warranted. The case was thus remanded in November 2012 with instructions for obtaining additional treatment records as well as conducting an examination. The examiner was to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of any disability due to a neck disorder. Accepting the Veteran's reporting of neck pain from a fellow sailor falling on him during service as credible, the examiner was to opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that any current neck disorder is related to active service, including the reported neck injury in service. VA examination was conducted in December 2012. The examining nurse practitioner opined as follows: Although I was unable to locate any documentation in the record re: the above stated injury, it is my opinion that the findings of severe osteoarthritis in the cervical spine could well have been trauma induced. I am unable to state definitively without resorting to mere speculation as to the nature of this trauma and it is likely to have been of a repetitive nature over the course of the time to result in this degree of osteoarthritis. In February 2013 argument, the Veteran's representative argued that the medical opinion provided as to etiology of a neck disability in the examination report is inadequate. The representative correctly observes that the examiner indicated that she could not render an opinion as to whether the currently present neck disability was likely due to service without resort to speculation. The Board too finds that the report of examination is inadequate for rating purposes inasmuch as the examiner does not comment on the relationship between current neck disability and service in light of the Veteran's assertions as to in-service trauma that have been accepted as credible by the Board. In years past, these types of noncommittal opinions amounted to "nonevidence," neither for nor against the claim. See Perman v. Brown, 5 Vet. App. 237, 241 (1993). See also, generally, Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Recent case law , however, suggests that caution must be exercised when referring to medical reports and opinions as "nonevidence" and that, instead, the probative value or weight (competency and credibility) of the evidence should be assessed. Specifically, in Hogan v. Peake, 544 F.3d 1295 (2008) and Fagan v. Shinseki, 573 F.3d 1282 (2009), the Federal Circuit stated that classifying a medical report and opinion as nonevidence is "troubling." More recently, in Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court held that where an examiner finds that he or she cannot provide an opinion without resorting to speculation, then "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability but also held that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data were fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. As noted above, the Veteran has testified in detail as to the circumstances of his injury service and the Board accepts his account as credible. He specifically described injuring his neck when someone fell on him while working on a boat and being in sick bay for a few days for that injury. The Board finds the Veteran's testimony in this regard to be wholly credible and considers him a reliable historian. As noted in the prior remand, the Board considers this credible testimony to be further information to assist an examiner in making a determination as to the critical issue in this claim. In consideration of these factors, the claim should be returned to the previous examiner for an addendum addressing the issue of etiology of current neck disability in view of the above discussion. Moreover, the Board notes that where the remand orders of the Board were not complied with, the Board itself errs in failing to insure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The claims folder should be returned to the examiner who performed tie December 2012 examination, or a suitable substitute. The claims folder must be made available to and reviewed by the examiner. An additional examination should only be conducted if deemed necessary by the examiner. Based on the examination results and the review of the claims folder, the examiner should provide an opinion with respect to any neck disorder identified as to whether it is at least as likely as not (50 percent or better probability) that the disorder is etiologically related to the Veteran's active service. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian, and that his assertions of record as to his duties in service, his neck injury and the in-service neck pain and treatment are credible. The supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide the required opinions, he or she should explain why the required opinions cannot be provided. 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. 2. Undertake any other development it determines to be warranted. 3. Then, readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO or AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the 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. 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).