Citation Nr: 1317710 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 09-23 146A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a neck disability. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from September 1999 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Jurisdiction of the Veteran's claims file was subsequently transferred to the VA RO in Chicago, Illinois. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing in April 2012 before the undersigned. A copy of the transcript has been associated with the claims file. At the hearing, he submitted additional evidence and waived his right to have it initially considered by the RO. 38 C.F.R. §§ 20.800, 20.1304(c) (2012). The record was held open for an additional 30 days after the hearing to allow the Veteran additional time to submit evidence. In September 2012 the Board granted service connection for a back disability and remanded the issue of entitlement to service connection for a neck disability to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. The appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND While the Board regrets the further delay that another remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. The Veteran is entitled to substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board remanded this case in September 2012 so that the Veteran could undergo a VA examination. He was provided one in February 2013. The examiner found that the Veteran did not currently have, nor had he ever had a neck condition. The Veteran reported that he had a neck injury in service and that he was seen by a corpsman. The examiner noted that there was no note of this in the service treatment records (STRs). The examiner provided a negative opinion and reasoned that there was no documented in service injury, no documented continuum of care from service until the present, and that there were no findings of a neck disability on examination. In the remand directives, the Board instructed the examiner to specifically address the Veteran's assertions as well as the four lay statements submitted by men who served with him, including his platoon commander and his supervisor. The examiner did not address these statements. Additionally, in his December 2003 report of medical history during service, he noted that he was injured in a wrestling incident and that he had subsequent head tension and soreness. In December 2004, an examiner noted that the Veteran had a traumatic injury in 2000. Thus, there is documentation of an injury in service. The negative opinion is not adequate because it is based in part upon an incorrect factual basis. The Board is not bound to accept medical opinions that are based upon an inaccurate factual background. See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). Further, the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). In March 2005, the Veteran received physical therapy at a private facility for recurrent neck pain. The Board notes further that additional private records were received in April 2013 which appear to indicate the Veteran's cervical spine disability may not have resolved. These records from The Cline Clinic show, in pertinent part, February 2012 treatment for cervicalgia and segmental dysfunction of the cervical spine. These records were added to the Veteran's claims folder subsequent to the 2013 VA examination. Thus, it is not clear from the record or the VA examination whether the Veteran had a neck disability that resolved during the appeal period. Although the examiner found that the Veteran had not ever had a neck condition, this was a yes or no response to a question on the examination form and the examiner provided no elaboration or discussion of the physical therapy records that described the Veteran's neck symptoms or of the additional 2012 private records referenced herein. On remand, an addendum opinion is needed to address the competent and credible contentions and statements from his fellow service members and the documented injury in the STRs, and so that a finding may be made regarding whether the Veteran had a neck disability that resolved during the appeal period or whether he currently still has such a disorder. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who conducted the February 2013 examination. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. A new examination is only required if deemed necessary by the examiner. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The examiner must provide an opinion as to the following: i) Whether the Veteran has a current neck disability that began during active service or is related to any incident of service. ii) If the Veteran does not have a current neck disability, whether he had one during the appeal period that subsequently resolved. c) The Board calls the examiner's attention to the December 2003 report of medical history in the Veteran's STRs where he reported a wrestling injury and a December 2004 statement from an examining physician noting a traumatic injury in 2000, as well as March 2005 private physical therapy for recurrent neck pain, and February 2012 treatment from The Cline Clinic for cervicalgia and segmental dysfunction of the cervical spine. d) The examiner must specifically address and accept as credible the Veteran's assertion that he was injured in a wrestling exercise in 2000 and the four lay statements asserting that the Veteran complained of neck pain consistently after his injury. e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. f) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 2. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). 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). _________________________________________________ S. L. Kennedy 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).