Citation Nr: 1323751 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-26 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1971 to April 1973. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied the Veteran's claim of entitlement to service connection for a cervical spine disorder, also his petition to reopen his previously denied claim of entitlement to service connection claim for a psychiatric disorder. In a January 2012 decision since issued, however, the Board determined there was the required new and material evidence and, therefore, reopened the claim for a psychiatric disorder. But rather than immediately readjudicating this claim on its underlying merits, the Board instead then proceeded to remand this claim and the claim for a cervical spine disorder the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. The additional development especially included obtaining all outstanding service treatment records (STRs) or military personnel records, particularly any concerning the Veteran's referral for psychiatric observation and evaluation in May 1971 while at Fort Jackson, South Carolina, as well as any regarding any additional (more recent) evaluation or treatment since service, irrespective of whether concerning the psychiatric or cervical spine disorder. He also was to undergo VA compensation examinations for medical nexus opinions concerning the etiologies of these disorders, but especially in terms of the likelihood they are related or attributable to his military service or date back to his service. The AMC since has issued a September 2012 Supplemental Statement of the Case (SSOC) continuing to deny these claims, so they are again before the Board. Unfortunately, though, as the VA mental disorders examination performed on remand was inadequate for adjudicatory purposes, the Board must again remand the claim for a psychiatric disorder to the RO via the AMC in Washington, DC. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (if VA provides an examination to elicit evidence, it must ensure the examination is adequate). However, the Board is going ahead and deciding the claim for a cervical spine disorder. Other records show the Veteran earlier filed a claim in December 2008 for special monthly pension (SMP) and for a total disability rating due to individual unemployability (TDIU). In accordance with VA's duties to notify and assist him with those claims, the RO sent him a letter in January 2009 advising him of the type of information and evidence needed to show his entitlement to these requested benefits. In February 2009, in response, he filed a written statement withdrawing his TDIU claim. He has not also withdrawn his claim for SMP, however. And in February 2012 he filed a statement alleging he is housebound, which, if shown to be true, is one of the bases allowing for payment of SMP. This claim has not been adjudicated initially by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction to consider this additional claim, so is referring it to the RO for appropriate development and consideration. FINDING OF FACT The preponderance of the evidence weighs against finding that the Veteran's current cervical spine disorder incepted during his service or is otherwise related or attributable to his service. CONCLUSION OF LAW His current cervical spine disorder is not the result of disease or injury incurred in or aggravated by his service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See Gonzales, 218 F.3d at 1380-81. The Board's analysis, therefore, focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claim. The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed. The law requires only that the Board address its reasons for rejecting evidence favorable to him. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case the claim is denied. Id. Veterans Claim Assistance Act (VCAA) The VCAA provides that VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of the evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and, (3) that he is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial decision on the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 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, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a Statement of the Case (SOC) or Supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of the notice. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the United States Court of Appeals for Veterans Claims (Court/CAVC) observed that a claim of entitlement to service connection consists of five elements: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and, (5) effective date. See 38 U.S.C. § 5103(a) (West 2002 & Supp. 2012). So compliance with the first Quartuccio element requires notice of all five of these elements of the claim, including the "downstream" disability rating and effective date elements. See Dingess, at 486. But a VCAA notice error is not presumptively prejudicial, rather, must be determined on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, a VCAA notice letter sent in October 2008 informed the Veteran as to each element of notice as set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The notice indicated the joint obligation between him and VA in obtaining pertinent evidence and information, and that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. The notice also provided information on the "downstream" disability rating and effective date elements. As well, the notice was sent prior to the initial adjudication of his claim, so in the preferred sequence. The Board therefore finds that he has received all required notice concerning his claim. The VCAA further provides that VA has a duty to assist him in the development of this claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes assistance in obtaining STRs and other pertinent medical records, including regarding relevant evaluation and treatment since service, as well as the provision of an examination when necessary to make a decision on the claim. Id. The duty to assist in the development of this claim has been satisfied. His STRs and post-service VA and private medical records have been obtained and associated with the claims file for consideration in this appeal, to the extent available. He also was provided a VA compensation examination in February 2012, on remand, for a medical nexus opinion regarding the etiology of his cervical spine disorder and particularly concerning the alleged relationship between this disorder and his military service. The report of this examination contains this necessary opinion and includes explanatory rationale discussing the basis of it, so the Board finds the examination and opinion adequately informative to decide this claim. The opinion rendered by the examiner was based on a comprehensive examination of the Veteran, which included consideration of his statements and medical records regarding the history of this disorder, and as mentioned is supported with explanatory rationale. The opinion therefore has the necessary factual predicate and underlying medical rationale, which is where most of the probative value of a medical opinion is derived, not just from mere review of the claims file and the conclusions ultimately reached. See, e.g., Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For these reasons, the Board is satisfied the AMC complied with the Board's January 2012 remand directives, both in terms of obtaining all outstanding records concerning this claim and the necessary medical nexus opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with, even if not exact or total compliance per se), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. It is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate this claim. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In response to the SSOC most recently issued in September 2012, both the Veteran and his representative indicated a short time later, in October 2012, that they did not have any additional evidence to submit regarding the appeal of this claim. So, in order to expedite the processing of this claim, they asked that the AMC go ahead and return this claim to the Board immediately, in the process waiving their right to wait the full 30 days allotted to submit additional evidence and argument. They also indicated that, should they submit evidence at a later time, they were waiving the right to have the claim remanded (sent back) to the AOJ, i.e., to the RO/AMC, for initial consideration of the evidence, preferring instead to have the Board do so in the first instance. 38 C.F.R. § 20.1304. Thus, as there is no indication or allegation that any other relevant evidence remains outstanding, at least as concerning this claim, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002). Relevant Statutes, Regulations and Cases Service connection is granted for disability resulting from a disease contracted or an injury sustained in the line of duty during active military service or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing entitlement to service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the Veteran has the claimed disability or, at the very least, showing 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 between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for a 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). Certain specific diseases listed in 38 C.F.R. § 3.309(a) are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year following separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). But if chronicity of disease or injury in service is not shown, or if it is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service; (2) symptoms of that condition continued after service; and, (3) the current condition is related to those continuing symptoms. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, recently held that continuity of symptomatology only can be used to establish this required linkage between the current condition and service if the condition is one of those explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, though not always, required to associate the claimed condition with service or a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). So service connection may be established either by showing direct or secondary service incurrence or aggravation or by using applicable presumptions, if they are available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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 whether the evidence also 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 additionally determine whether it is also credible). Only if the evidence is both competent and credible does it ultimately have probative value. See 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")); Rucker v. Brown, 10 Vet. App. 67, 74 (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 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. See 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, 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) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). On the other hand, laypersons equally have been found not competent in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding 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 seek a medical opinion on the issue). 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). Competent medical evidence, as opposed to lay 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"). As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In ultimately rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Turning now to the relevant facts and circumstances of this particular case, the evidence shows the Veteran's spine was clinically evaluated as "normal" during his military entrance examination in April 1971. So it is presumed he did not have a cervical spine disorder when entering service. 38 U.S.C.A. § 1111, 38 C.F.R. § 3.304(b). He began serving on active duty that same month. A few months later, in July 1971, he complained generally of joint pain. It was noted he was positive for rheumatoid factor in the past, and a blood test was ordered. The following month, so in August 1971, his aches remained, but his sed rate (erythrocyte sedimentation rate) was normal. The pain was noted to be particularly located in the knees, left hip, and cervical spine, and was accompanied by fever. After clinical evaluation, the reason for the joint pain remained unknown. The evaluating physician determined the Veteran did not have rheumatic fever, but was unable to diagnose the cause of the pain. He said the nonspecific nature and lack of objective findings mitigated against the presence of a serious disease, although he believed the symptoms nonetheless should continue to be evaluated. The Veteran resultantly was given a thermometer and asked to take his temperature nightly, and to return if his symptoms changed or increased. About a year after that, in June 1972, the Veteran was evaluated for recurrent multiple-joint pain and the feeling of generalized fatigue. He complained of pain and stiffness in both the upper and lower spine, and in both wrists. He said the pain increased after eating or drinking cold foods or liquids. Urinalyses of sed rate, protein, and rheumatoid factor were negative. There was no evidence of any objective signs in any of the joints during the examination, except for some decrease in flexion of the lumbar spine. He had no areas of specific tenderness. The evaluating physician could not determine the cause of the Veteran's pains, but on the theory that he was developing a rheumatory-type syndrome he was prescribed a trial of ASA (aspirin). X-rays were taken of his hands and wrists and lumbar spine, which were normal. By August 1972, the Veteran did not respond to the aspirin treatment and was given of trial of phenobutozone. Later that month, after also not responding to the new prescription, all medication was discontinued and the plan was to continue observation. During his military separation examination the following year, in February 1973, the Veteran's spine was again clinically evaluated as normal. His military service ended in April 1973. In a letter to the Veteran's private primary care physician dated in January 1989, a private rheumatologist noted the Veteran was referred to her because he had developed pain in the hands, wrists, elbows, ankles, and neck. His neck was painful on rotation and extension, with spasms and tenderness over the trapezius, paravertebral cervical, and upper thoracic muscles. X-rays showed early degenerative joint disease changes (i.e., arthritis) in the cervical spine. He was diagnosed with cervico thoracic myositis. Her recommendation was to act conservatively with his joint complaints and follow up with the symptoms on a long-term basis. In August 2000, it was again noted the Veteran had cervical pain due to degenerative joint disease. In April 2011, a computed tomography (CT) scan of the cervical spine showed multilevel degenerative changes, with neural foraminal and spinal canal narrowing. During the February 2012 VA compensation examination he had following and as a result of the Board remanding this claim, the Veteran again was diagnosed with multilevel degenerative changes of the cervical spine and cervical postlaminectomy syndrome. The examination report noted that imaging studies had revealed arthritis. But the examiner determined that it was unlikely the current diagnoses were related to the Veteran's military service. He observed that, while in service, the Veteran had complained of pain in multiple joints, including the cervical spine, and was tested for a rheumatoid condition. All tests and images were negative at that time, and the cause of the pain was never found. He surmised the Veteran's current cervical spine condition is due to non-traumatic age-related changes that caused degeneration in the cervical vertebrae necessitating a laminectomy. He said the Veteran's present condition is due to residuals of the surgery and degenerative age-related changes. Given this evidence, there certainly is no disputing the Veteran has a current cervical spine disability. This is evident by the diagnoses he has received. He still has to show this current disability is related to his military service, however, to warrant the granting of service connection. 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."). Unfortunately, it is in this equally critical respect that the evidence is against, rather than supportive, of his claim, so his claim must be denied. The Veteran has been diagnosed with multilevel degenerative changes, or arthritis, which is one of the conditions that can be service connected upon a showing of continuity of symptomatology since service seeing as though it is defined as "chronic" by 38 C.F.R. § 3.309(a). The evidence, however, does not show that he had arthritis within the first year after his separation from service, including especially to the required minimum compensable degree of at least 10-percent disabling, so his cervical spine disorder cannot be presumed to have been incurred during his service. See 38 C.F.R. § 3.307. Similarly, the evidence does not show a continuity of symptomatology since his service. Although he complained of neck pain while in service, the cause of that pain was never attributed to arthritis, even the rheumatoid variant, or to other degenerative changes. Indeed, in 1971 and 1972 he was given extensive examinations and clinical workup, and both times the evaluating physicians ultimately determined there were no objective findings of any clinical significance in reference to his cervical spine. Further, there is no evidence that he complained of a painful neck continuously since service; instead, the first relevant post-service complaint was not until 1989, over 15 years following his separation from service. In this circumstance, the Board may 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. 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 since service and had failed to account for the lengthy time period following service during which there was no clinical documentation of the claimed disorder). Thus, because degenerative changes were only initially suspected, but not actually "noted", during his service, and his symptoms did not continue after separation from service, service connection based on continuity of symptomatology since service is not established. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The only evidence directly addressing the issue of whether there is a nexus or correlation between the Veteran's current cervical spine disability and his service is the February 2012 VA examination report, wherein the examiner explained that such a relationship is unlikely. He pointed out the Veteran was given diagnostic tests in service, and at that time there were no positive objective findings indicative of a cervical spine disorder. Moreover, he said the Veteran's current diagnoses were more so the result of age-related degenerative changes, which obviously have nothing whatsoever to do with his military service inasmuch as this would have occurred as he got older, regardless. The Board finds this VA examiner's opinion the most probative evidence in the file concerning this determinative issue of causation, as the examiner reviewed the claims file, considered both medical records and the Veteran's lay statements, performed the necessary diagnostic testing and evaluation, and rendered an opinion that is supported by explanatory rationale. Accordingly, the Board places a lot of weight on this examiner's opinion, especially since the type of cervical spine disorders the Veteran has are not readily amenable to probative lay comment regarding their diagnoses and etiologies, so including as specifically pertaining to any potential relationship with his military service that ended many years ago. That is to say, this is not the type of "simple" medical condition allowing for establishment of this required nexus or correlation merely with lay evidence; instead, because it is complex, there has to be supporting medical evidence, and there simply is none in this instance. There is no evidence in the file probatively outweighing the February 2012 VA examiner's unfavorable opinion. Therefore, the preponderance of the evidence is against the claim, in turn meaning the benefit-of-the-doubt rule does not apply, and that the claim resultantly must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim of entitlement to service connection for a cervical spine disorder is denied. REMAND As already alluded to, the Veteran's remaining claim of entitlement to service connection for a psychiatric disorder again must be remanded for an addendum medical nexus opinion. The Veteran was diagnosed with major depressive disorder, recurrent, which the VA examiner found unlikely related to service. His opinion, however, is inadequate for adjudicatory purposes, as the he did not fully review and consider all of the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (stating that when the Secretary undertakes to provide a medical examination or obtain a medical opinion, he must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's relevant medical history). Specifically, he noted the Veteran reported he had been hospitalized due to his disability, but he could find no medical evidence showing a history of psychiatric hospitalization. To the contrary, however, there are medical records in the file documenting psychiatric hospitalizations in June and July 1977, and again in June and July 1980. In 1977, the Veteran was complaining of feeling anxious and uneasy, and had started acting uncharacteristically aggressive and destructive. In 1980, he had suicidal ideation. The VA examiner also cited a June 1994 letter from Dr. C.E.F., and in summarizing what was said noted that the doctor had treated the Veteran since 1973 due to a psychotic breakdown. The letter actually says the doctor had treated the Veteran since 1973 "for the condition 296.3," which was not identified by the doctor or the VA examiner. Major depressive disorder (MDD) is identified as 296.3 in the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), which was released in 1994 and which is the year Dr. C.E.F wrote his letter. It also appears to say that symptomatic psychotic episodes were in remission. If Dr. C.E.F. treated the Veteran for MDD - which is the Veteran's current diagnosis - and as early as 1973 as indicated, then this should be specifically addressed by the VA compensation examiner. The evidence shows the Veteran has had psychotic episodes, as well as previous diagnoses of schizophrenia. Service connection for specific psychoses may be established by presumption, if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. The issue of whether the Veteran's psychiatric condition may be considered a psychosis presumptively related to his service therefore also needs to be considered and discussed in the supplemental medical nexus opinion. Accordingly, this claim is again REMANDED for the following additional development and consideration: 1. If available, have the VA mental disorder examiner that evaluated the Veteran in February 2012 following and as a result of the Board's prior remand, provide additional comment, i.e., a supplemental opinion, concerning the likelihood (very likely, as likely as not, or unlikely) that any current psychiatric disorder initially manifested during the Veteran's military service from April 1971 to April 1973, or, if a psychosis as defined by § 3.384, within one year of his discharge, so meaning by April 1974, or is otherwise related or attributable to his military service or dates back to his service. In making this necessary determination of causation, the examiner is asked to review the claims file and to reference the specific records supporting his conclusion. He is especially advised of the following evidence: a. The Veteran's lay statements describing onset of symptoms that must be considered and discussed. The examiner is specifically directed to ask the Veteran about psychiatric evaluation and/or treatment in service, as his STRs are incomplete but there is suggestion he was referred for psychiatric observation and evaluation in May 1971 while at Fort Jackson, South Carolina. b. The Veteran also was hospitalized in June 1977, so just a little more than 4 years after the conclusion of his service, for psychiatric treatment. He was anxious, restless, and had fears that he could not explain. He was arguing with his wife and having crying spells. His diagnosis was anxiety neurosis with depressive features, rule out schizophrenia. c. He was moved to another hospital in June 1977, and was there until July 1977. It was noted he was acting uncharacteristically aggressive and destructive. He was agitated, angry, heard voices, had incoherent speech, and could not remember the details of the events that had led to his hospitalization. His final diagnosis was schizophrenia, chronic, undifferentiated type, with strong catatonic features. d. In 1994, Dr. C.E.F. noted he had been treating the Veteran since 1973 (so since his service) for condition 296.3, which, according to the 1994 edition of the DSM-IV, is MDD, and that psychotic episodes were in remission. The VA examiner therefore is asked to identify the condition mentioned in terms of whether that was in fact a reference to MDD and comment specifically on it when rendering the opinion. e. In 1978, Dr. M.T.R. added that he had treated the Veteran in 1973 (so the same year his service ended) for depression, restlessness, and crying spells. The consequent diagnosis reportedly was psychoneurosis. The examiner is also asked to comment on the Veteran's symptomatology over the years, especially in regards to his changed or varying diagnoses, as well as how his prescribed medications have affected his symptoms. See 38 C.F.R. §§ 4.13 and 4.125(b) regarding the effect of a change in diagnosis. The examiner must support all opinions with explanatory rationale. If, for whatever reason, this examiner is unable to provide this additional comment, then have someone else do it that has the necessary qualifications and expertise. In this eventuality, the Veteran may need to be reexamined, but this is left to the designee's discretion. 2. Thereafter, review the medical opinion to ensure its compliance with the above directives. If it is not in compliance, it must be sent back for remediation. 3. Then readjudicate this claim for service connection for a psychiatric disorder in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of this remaining claim. The Veteran 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