Citation Nr: 1319005 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 05-28 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from August 1985 to August 1987. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In February 2013, the Board remanded the Veteran's claim so that a medical examination and opinion could be obtained regarding whether any diagnosed cervical spine disorder was related to the Veteran's military service. In providing this opinion, the Board directed the examiner to address the service treatment records showing that the Veteran had a grenade simulator go off near his face and spine in May 1986; his January 1987 in-service reports of crepitance and stiffness in the mid-cervical area; and in-service findings showing a soft tissue injury to the cervical spine. The examiner was also requested to consider post-military evidence noting that a magnetic resonance imaging examination (MRI) revealed a small herniated disc in the cervical spine. The Board directed the examiner to provide the medical rationale for any opinion provided. Although the Veteran was afforded a VA examination and VA opinions were obtained in April 2013, the Board finds the medical opinions included in these medical reports to be inadequate with which to decide the Veteran's claim. Specifically, neither the April 5, 2013 opinion nor the April 12, 2013 opinion, both provided by the same VA examiner, gives adequate consideration to the Veteran's soft tissue injury to the neck documented in his service treatment records. Indeed, in the April 5, 2013 examination report, the VA examiner stated that the Veteran was seen on occasion for cervical spine tenderness but that there was no history of injury. The physician opined that there was no evidence that a current cervical spine disorder is related to the Veteran's military service as there was no history of injury noted in the military records. This same VA physician then stated in an April 12, 2013 examination report that there was no clear documentation of a severe cervical spine injury in service. Although the physician noted the Veteran's in-service complaints of crepitus and stiffness, the physician opined that the small herniated cervical disc condition was asymptomatic and could not be related to any military event or injury. However, the physician's most recent opinion is predicated on whether the Veteran sustained a severe cervical spine injury and does not directly address the fact a soft tissue cervical spine injury, regardless of the severity, is shown to have occurred during his active duty service. Thus, as argued by the Veteran's representative in a May 2013 informal hearing presentation, the April 2013 VA opinions do not give adequate consideration to the Veteran's in-service soft tissue injury to the cervical spine. The VA examiner based the April 12, 2013 opinion against the claim, in part, on the absence of a documented continuum of care from service until now. The Veteran's statements are competent evidence that he has experienced cervical spine symptoms since service because this requires only personal knowledge as it comes to him through his senses. See 38 U.S.C.A. § 1154(a) (West 2002); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). His competent lay statements of a continuity of cervical spine symptomatology since service must be given adequate consideration in determining whether service connection is warranted, and thus must be given consideration by the VA examiner. Given the inadequacies in the April 2013 VA opinions, coupled with the fact that they do not comply with the February 2012 Remand directives, the Veteran must be given another examination to determine the nature and etiology of his claimed cervical spine disorder. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); see also, Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, the case is remanded for the following action: 1. The Veteran must be afforded a VA examination to be conducted by an appropriate examiner, other than the May 2011, September 2012, and April 2013 VA examiners, to determine whether any cervical spine disorder diagnosed since he filed his claim in February 2003 is related to his military service. The examiner must review the claims file and all records on Virtual VA, as well as this remand, and must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records, if any, that are reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, including an MRI of the cervical spine, if necessary, must be accomplished and reported in detail. Following the examination of the Veteran's cervical spine, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must opine whether any cervical spine disorder diagnosed during the pendency of the claim is related to the Veteran's military service or any incident therein, to include the May 1986 injury and the January 1987 complaints of crepitance and stiffness in the mid-cervical area. In rendering the opinion, the examiner must consider and specifically address the Veteran's May 1986 injury, his in-service incident of soft tissue injury to the neck, findings and complaints in January 1987, as well as current medical evidence noting an MRI of the cervical spine reflective of a small herniated disc. In providing the requested opinion, the examiner must consider and discuss any conflicting medical evidence or opinions of record. All opinions express must be include a complete rationale. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would be speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 2. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination, and to cooperate in the development of the claim. The consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to the last known address. Documentation must also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 3. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, implement corrective procedures at once. 4. After completing the above actions, and any other development as may be identified by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence and argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).