Citation Nr: 1314596 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-05 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a low back disorder with left lower extremity radiculopathy. 2. Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from February 1980 to February 1983 and from February to June 1986. He also had additional periods of active duty for training and presumably also inactive duty training. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2012 the Veteran had a videoconference hearing before the undersigned Veterans Law Judge of the Board. During the hearing the Veteran raised the additional issue of his entitlement to service connection for a cervical spine disorder; his claim currently at issue in this appeal instead concerns the lower lumbosacral or lumbar segment of his spine. His claim for a cervical spine disorder has not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not presently have jurisdiction to consider this additional claim so is referring it to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). As concerning the issue of his entitlement to service connection for a low back disorder with left lower extremity radiculopathy that is presently before the Board, this claim requires further development, so the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. Whereas the Board, instead, is going ahead and deciding the claim for service connection for a right shoulder disorder. FINDING OF FACT The Veteran's right shoulder disorder, which involves post-operative changes of the clavicle, is not shown to be related or otherwise attributable to his military service. CONCLUSION OF LAW This right shoulder disorder is not the result of disease or injury incurred in or aggravated by his military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprise him of the information and evidence VA will obtain versus the information and evidence he is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). And when the claim is for service connection, this notice must not only apprise him of the need to establish his status as a Veteran, that he has the claimed disability, and that there is a relationship or correlation between the disability and his military service, but also of the "downstream" disability rating and effective date elements of the claim in the event service connection is granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing there is a VCAA notice error but also, above and beyond that, showing the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, prior to initially adjudicating the Veteran's claims, so in the preferred sequence, a January 2007 letter was sent to him in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). He was duly notified of the evidence that was needed to substantiate his claim, of information and evidence that VA would obtain, and of the information and evidence he was expected to provide, and told that VA would assist him in obtaining supporting evidence, but that it was his ultimate responsibility to provide VA any evidence pertaining to his claim. He was also notified of the criteria for establishing a "downstream" disability rating and effective date, as required by Dingess. Therefore, he has received all required notice concerning his claim. B. Duty to Assist There is this additional obligation to assist him in the procurement of evidence that might tend to help substantiate his claim. To this end, his service treatment records (STRs), private treatment records, lay statements, and the transcript of his videoconference hearing before the Board have been associated with his claims file for consideration. He was also provided a VA compensation examination concerning his claimed right shoulder disorder. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination obtained concerning this claim is adequate as it is predicated on a review of the claims file, contains a description of the history of this disability, documents and considers the relevant medical facts and principles, and provides an opinion regarding the etiology of this disability, particularly in terms of whether it is related or attributable to his military service. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for this claim has been met. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As concerning his November 2012 videoconference hearing before the Board, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Here, during the hearing, the presiding VLJ elicited testimony and sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might tend to substantiate this claim. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conducting of the hearing. In contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated his actual knowledge of the elements necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or his representative demonstrating an awareness of what is necessary to substantiate a claim). As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicating the claim based on the existing record. The Veteran has received all required notice and assistance with this claim, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VA has provided him opportunity to submit evidence and argument in support of this claim. He has not made the Board aware of any additional evidence needing to be obtained prior to appellate review of this claim, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection A. Applicable Law In order to establish entitlement to service connection for a claimed disability, the facts must demonstrate that a disease or an injury resulting in current disability was incurred in active military service in the line of duty or, if pre-existing service, was aggravated during service beyond its natural progression. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Active military, naval, or air service includes not only active duty (AD), but also any period of active duty for training (ADT) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (IADT) during which the individual concerned was disabled or died from an injury, though not also disease, incurred in or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. §§ 3.6(a), (d). See also Harris v. West, 13 Vet. App. 509, 511 (2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); and Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Certain diseases are considered chronic, per se, including arthritis, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). It also does not apply to claims predicated on ADT and IADT service, only AD, and there equally are no presumptions of soundness and aggravation concerning claims premised on ADT and IADT service. See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010). Reserve and National Guard service generally means ADT and IADT. ADT is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. IADT includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training. These drills are deemed to be part-time training. So to the extent the Appellant is alleging he has disability as a result of injury or disease incurred or aggravated during his time in the reserves, it must be remembered that only "Veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(a). Thus, to establish his status as a "Veteran" based upon a period of ADT, he must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ADT. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The same is true for establishing his entitlement to compensation for disability from injury, though not disease, incurred or aggravated during his IADT. Id. So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). For a showing of chronic disease in service, or within an applicable presumptive period, 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 of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). But service connection based on a theory of continuity of symptomatology is applicable only for those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether the evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Baldwin v. West, 13 Vet. App. 1, 8 (1999). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson 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 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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts generally have held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons also have been found not competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). The Federal Circuit Court held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. But as also observed by the Federal Circuit Court, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). In Colantonio, 606 F.3d at 1382, the Federal Circuit Court recognized that in some cases lay testimony "falls short" in proving an issue requiring expert medical knowledge. Similarly, in Waters, 601 F.3d at 1278, the Federal Circuit Court concluded that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to obtain a medical opinion on the issue. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Indeed, even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive and, thus, not ultimately probative. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); and Rucker v. Brown, 10 Vet. App. 67 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. Buchanan at 1337. The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence. Id. B. Evidence and Analysis The Veteran's STRs are unremarkable for any complaints, treatment, or diagnoses of a right shoulder disorder of any sort. Examinations in January 1980 and November 1985 revealed no relevant abnormalities, and he denied a history of any painful or "trick" shoulder conditions. His AD service ended in June 1986. Other records show he was involved in a motor vehicle accident one year later, in June 1987, but these records specifically note the accident occurred during a period of ADT, and that the injuries he sustained were in the line of duty. However, these records do not reflect any complaints or diagnoses specifically referable to his right shoulder. He complained of left-sided neck pain, and examination revealed palpable left paraspinal cervical spine spasms. He was diagnosed with a cervical spine strain. Subsequent records generated several days later reflect complaints of left anterior neck pain, as well as complaints concerning his left arm and left knee. Again, though, there were no complaints or findings specifically referable to his right shoulder. Private treatment records show he underwent a resection of his right distal clavicle with release of the coracoacromial ligament in April 1996. A VA examination was performed in June 2012 in response to this claim of entitlement to service connection. The claims file was reviewed by the examiner, who also obtained a history from the Veteran and performed an objective physical evaluation. The Veteran reported injuring his right shoulder during the June 1987 motor vehicle accident. He said he was referred to an Army hospital and diagnosed with soreness. He said his symptoms worsened in 1995, and the examiner noted the Veteran's subsequent 1996 surgery. The examiner diagnosed post-operative changes of the right clavicle but determined this condition was less likely than not related to the Veteran's service. This unfavorable medical opinion was based on the fact that the documentation of the Veteran's 1987 motor vehicle accident was unremarkable for any issues specifically pertaining to his right shoulder. During his November 2012 videoconference hearing before the Board, the Veteran continued to maintain that he had injured his right shoulder in the June 1987 motor vehicle accident while on ADT. Unfortunately, however, there simply is insufficient evidence to conclude he sustained any injury to his right shoulder in that motor vehicle accident or that he has any right shoulder disability as a result or consequence of that accident or otherwise pertaining to his service. Although he has a currently diagnosed condition, the overall weight of the evidence is against finding that it was incurred in or is otherwise related to his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). His STRs contain no findings related to a right shoulder condition, much less a chronic or permanent condition, either in the way of a relevant subjective complaint or objective clinical finding such as a pertinent diagnosis. While he continues to assert he injured his right shoulder in the motor vehicle accident during his ADT, the treatment records generated after that accident contain no reports of injury to his right shoulder or of consequent disability. Although the Board must consider his lay statements and testimony regarding the claimed history of this condition, it may consider whether his self-interest may be a factor in making such statements. Pond v. West, 12 Vet. App. 341 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board finds it significant that he did not complain of any right shoulder symptoms or condition following that motor vehicle accident in 1987, despite this opportunity seeing as though he had other complaints concerning other areas of his body that had been injured. See Struck v. Brown, 9 Vet. App. 145 (1996) (discussing how contemporaneous medical findings may be given more probative weight than contrary evidence offered years later, long after the fact); Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later). Moreover, lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). That said, the Board cannot summarily reject his lay testimony out of hand. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning evidence actually weighing against a party, should not be equated with the absence of substantive evidence). Ultimately, the Board must consider all of the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). Here, the amount of time that passed between the Veteran's reported onset of right shoulder disability in comparison to when he was first diagnosed with this claimed disorder was very substantial, indeed, many years. And although this, too, is not entirely dispositive of his claim, it is also nonetheless other evidence tending to go against his claim. The Board may, in this circumstance, consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following service during which there was no clinical documentation of the claimed disorder). The VA examiner's unfavorable medical opinion further weighs against the claim in terms of completely disassociating all current right shoulder disability from that motor vehicle accident in service. For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim of entitlement to service connection for a right shoulder disorder. Accordingly, the benefit-of-the-doubt rule does not apply, and this claim resultantly must be denied. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER The claim of entitlement to service connection for a right shoulder disorder as a residual of injury is denied. REMAND With respect to the Veteran's remaining claim of entitlement to service connection for a low back disorder with left lower extremity radiculopathy, additional development is necessary in order to fully and fairly adjudicate this other claim. The Veteran's STRs show he complained of back pain in March 1981 after jumping off a truck. He was diagnosed with a muscle strain. A November 1985 examination was normal, and he denied a history of low back pain at that time. Additional records, as mentioned, show he was involved in a motor vehicle accident in June 1987 during a period of ADT. However, he was not diagnosed with or treated for a consequent low back condition. He had a VA compensation examination in June 2012. The examiner reviewed the claims file, obtained a history from him, and performed an objective physical evaluation. He diagnosed the Veteran with failed surgical back syndrome secondary to non-union L4-L5, L5-S1. He acknowledged the Veteran's history of the muscle strain in 1981, but nonetheless concluded the Veteran's current low back surgical residuals were not caused by or a result of anything that had occurred during his military service. However, there was no further explanation for this conclusion, so no supporting rationale, which is where most of the probative value of an opinion is derived. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two"). The Board, therefore, finds this medical examination and opinion do not contain sufficient detail to decide this claim. Hayes v. Brown, 5 Vet. App. 67, 73 (1996). A medical opinion is considered adequate, versus inadequate, when it is based upon consideration of the Veteran's prior medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the disability will be fully informed and permit the Board to weigh the probative value of the opinion against others. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). And to be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder, instead, must also support the conclusion with sufficient rationale and explanation. Stefl, 21 Vet. App. at 124. The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Once VA endeavors to provide an examination for an opinion in a service-connection claim, even if not statutorily obligated to, VA must ensure the examination and opinion are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). If not, it is incumbent on the Board to return the examination report to obtain all necessary additional comment. 38 C.F.R. § 4.2. The failure of an evaluating physician to provide a basis for his/her opinion affects the weight or credibility of the evidence. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). So, in this case, the June 2012 VA examiner must provide an explanation for why the Veteran's current condition is unrelated to the muscle strain diagnosed during his service in 1981. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. The claims file, including a copy of this remand, must be returned to the VA examiner that evaluated the Veteran in June 2012 for submission of a supplemental opinion again addressing the likelihood (very likely, as likely as not, or unlikely) the Veteran's current low back disability is related or attributable to his military service or dates back to his service. The term "as likely as not" means at least 50-percent probability. It does not however mean merely within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as to find against it. In making this important determination of causation, the VA examiner must specifically address the findings from March 1981 showing a diagnosis of muscle strain. The examiner must provide an opinion as to whether the Veteran's current condition is related to that March 1981 finding. It is most essential the examiner provide an explanation for his conclusion, so discussion of the underlying rationale of the opinion is required. If the examiner is unable to provide this opinion without resorting to mere speculation, he must state why this is the case, such as by indicating whether additional evidence or other procurable data is needed, there are multiple possible etiologies with none more prevalent than another, the limits of medical knowledge have been exhausted, or whatever may be the case. So merely saying he cannot comment will not suffice. If, for whatever reason, the February 2011 VA examiner is unavailable to provide this further comment, then the claims file must be forwarded to someone else qualified to make this necessary determination. This new examiner should reference the June 2012 findings and opinion and address the relevance of the preceding March 1981 findings. This additional examiner also may want to examine the Veteran personally, rather than just review this evidence in the file, so it is left to his/her discretion as to whether another examination is needed. 2. Then readjudicate this remaining claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs