Citation Nr: 1333735	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  10-14 520	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to service connection for a vision disorder, to include as secondary to residuals of a traumatic brain injury (TBI) and headaches.

2.  Entitlement to service connection for lumbar spine degenerative disc disease status post two surgeries, with residual lower extremity radicular symptoms.

3.  Entitlement to service connection for a cervical spine strain with degenerative arthritis.

4.  Entitlement to service connection for bilateral hearing loss, to include as secondary to residuals of a TBI.

5.  Entitlement to service connection for tinnitus, to include as secondary to residuals of a TBI.




REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from September 1994 to September 1998.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied service connection for a vision disorder, lumbar spine degenerative disc disease, a cervical spine strain, bilateral hearing loss, and tinnitus.

The issues of (1) entitlement to service connection for a vision disorder, to include as secondary to a TBI and headaches; (2) entitlement to service connection for lumbar spine degenerative disc disease status post two surgeries, with residual lower extremity radicular symptoms; and (3) entitlement to service connection for a cervical spine strain with degenerative arthritis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The most probative evidence fails to link the Veteran's claimed bilateral hearing loss to his service, or to his service-connected residuals of a TBI.

2.  The most probative evidence fails to link the Veteran's claimed tinnitus to his service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss, including as secondary to service-connected residuals of a TBI, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.385 (2013).

2.  The criteria for service connection for tinnitus, including as secondary to service-connected residuals of a TBI, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004).  This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA's notice requirements were satisfied by August 2008 and October 2009 letters which advised the Veteran of the criteria for establishing service connection, and provided him with notice regarding the assignment of disability ratings and effective dates.  The letters were sent prior to the original adjudication of the Veteran's claims in January 2009, and prior to the readjudication in February 2010, respectively.  Although the letters did not provide the Veteran with notice as to service connection on a secondary basis, he is not prejudiced thereby because he demonstrated actual knowledge of the availability of secondary service connection in his written statements of record.

Next, VA has a duty to assist the Veteran in the development of his claim.  This duty includes assisting him in the procurement of pertinent medical records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records and records of his post-service VA and private treatment.  VA also received correspondence from the Social Security Administration (SSA) to the effect that the Veteran does not have any SSA records.

The Veteran was afforded a VA compensation and pension examinations germane to his claims for service connection for bilateral hearing loss and tinnitus in September 2008.  The examination report is adequate because the examiner based his opinions upon consideration of the Veteran's prior medical history, described the Veteran's symptoms in sufficient detail so that the Board's evaluations of the claimed disabilities would be fully informed, and supported all conclusions with analyses that the Board could consider and weigh against any contrary opinions.  Additionally, the VA examiner fully described any functional effects caused by the Veteran's claimed disorders.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).

For the foregoing reasons, the Board concludes that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claims.  Therefore, no further assistance to the Veteran with the development of evidence is required.

Service Connection for Hearing Loss and Tinnitus

In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein.

Establishing direct service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

Service connection may also be established for disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a) (2012).  Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.  38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability.  However, this presumption is inapplicable in this case because the most probative evidence of record does not show that the Veteran manifested high frequency sensorineural hearing loss to a degree of 10 percent within one year from the date of termination of service.

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service.  Hensley, supra, at 159.

The Veteran reported in his July 2008 claim that he has hearing loss and tinnitus due to acoustic trauma in service.  In his April 2010 substantive appeal, the Veteran stated that he has tinnitus "daily at some level.  It is significantly louder about once a month.  In addition TBI is a cause of tinnitus, plus the [motor vehicle accident] noise was extremely loud which also contributed to the tinnitus."  The Veteran also submitted prior non-precedential Board decisions, the facts of which materially distinguish them from the current appeal and, therefore, render their outcomes unpersuasive in this instance.  The Veteran's spouse also reported that the Veteran has tinnitus.

The Board is cognizant that the Veteran has suggested an intent to reapply for service connection for bilateral hearing loss if his hearing worsens in the future.  However, he also checked a box in his April 2010 substantive appeal indicating that he wanted to appeal all of the issues listed on the February 2010 statement of the case, which included the issue of entitlement to service connection for bilateral hearing loss.  As the Veteran's comments do not constitute an explicit and unambiguous intention to withdraw his claim-indeed, he does not at any point use words such as "withdraw" or "dismiss," or any equivalent terminology-the Board finds that adjudication of his claim for service connection for bilateral hearing loss is warranted.  See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Evans v. Shinseki, 25 Vet. App. 7 (2011).

The Veteran's service treatment records include no complaints, diagnosis, or treatment of hearing loss or tinnitus.  In a June 1997 Hearing Conservation Examination, the Veteran reported that he had no hearing loss of any kind, and no difficulty hearing: warning bells or sirens, over the phone, in noisy rooms, or normal speech.  The Veteran also denied having pain in his ears, or using a hearing aid.  He denied ever having repeated exposures to noise from firearms, construction equipment, or power tools.  On the question of whether he had ringing in his ears, the Veteran responded that he did not know.  In August 1997, the Veteran experienced a motor vehicle accident and was diagnosed with minor irritation of his right ear; no complaint, diagnosis, or treatment of hearing loss or tinnitus was found.

After service, the Veteran underwent a VA audio compensation and pension examination in September 2008.  The Veteran reported having tinnitus for 5 to 10 seconds per month, and having trouble hearing high-pitched sounds.  He reported that he started experiencing hearing loss in 1997 after working on the flight line.  He reported that he did not know when his tinnitus started.  He further reported that after service he worked as a truck driver for ten years.  The examiner found that he had the following audiometric test results:

Sept. 2008


HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
15
10
15
LEFT
15
15
15
10
30

The Veteran had speech recognition scores, using the Maryland CNC Word List, of 96 percent bilaterally.  The September 2008 examiner opined:

There was no evidence of hearing impairment in either ear in the [Veteran's] first three years in the service.  He stated he mainly did office work in the service.  [The Veteran] was a truck driver for ten years.  His mild high frequency loss in the left ear was likely due to receiving more traffic and engine noise in that ear while driving [a] truck [after service].  He suffered no hearing impairment in either ear as the result of military service....

The frequency and duration of the tinnitus was not characteristic of tinnitus associated with noise exposure.  [The Veteran] stated its occurrence was "so rare," about once a month for five to ten seconds.  [His] tinnitus was not caused by acoustic trauma in the service.

Since [the Veteran's] hearing sensitivity was within normal limits in both ears, he will have no communication problems during occupational functioning or daily activities.

In a June 2009 VA examination of the Veteran's TBI, the examiner found that the Veteran's "minor loss of hearing" and "sporadic tinnitus" documented above "might be related to the detonations he was around" in service.

The Board finds that the question of whether the Veteran has legally cognizable hearing loss which is etiologically related to service is complex in nature.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  While the Veteran is competent to describe his noise exposure and difficulty hearing, the Board accords his statements regarding the extent and etiology of such disorder no probative value as he is not competent to opine on such complex medical questions.

Furthermore, the audiological testing of record shows that the Veteran has no current hearing loss disability, and, as such, there can be no valid claim for service connection for hearing loss.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed).  Specifically, because the Veteran's auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is not 40 decibels or greater; his auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are not 26 decibels or greater; and his speech recognition scores using the Maryland CNC Test are not less than 94 percent, the Veteran's claimed bilateral hearing loss is not a disability for the purposes of applying the laws administered by VA.  38 C.F.R. § 3.385.  Therefore, service connection for hearing loss is not warranted.

With respect to tinnitus, the Board finds that the September 2008 audiological examiner's opinion warrants greater probative weight than the June 2009 TBI examiner's opinion.  Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999) (where conflicting competent opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given).  Specifically, the September 2008 examiner's opinion includes the rationale that "The frequency and duration of the [Veteran's] tinnitus was not characteristic of tinnitus associated with noise exposure."  By contrast, the June 2009 examiner's opinion was purely speculative, as demonstrated by his statement that the tinnitus "might be related to the detonations he was around" in service.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Morris v. West, 13 Vet. App. 94, 97 (1999) (a diagnosis that the appellant was "possibly" suffering from schizophrenia was deemed speculative); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993), (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (a generic statement about the possibility of a link is too general and inconclusive); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative).

Similarly, the September 2008 audiological examiner's etiological opinion warrants greater probative weight than the Veteran's lay assertions of a nexus because the examiner has greater audiological expertise and relied on contemporaneous testing and examination.  Moreover, the Board finds that the Veteran's statements in his April 2010 substantive appeal, in which he expressly changed the reported frequency and severity of his tinnitus, lack credibility because he offered no reason for why he had given different information to the examiner.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board may discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence).  Consequently, the Board finds that the September 2008 audiological examiner's opinion is more probative than the speculative and lay opinions to the contrary.

The Board further finds that the question of whether the Veteran's tinnitus was caused or aggravated by his TBI is complex in nature.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  While the Veteran is competent to describe the symptoms of tinnitus, the Board accords his statement relating his tinnitus to his service-connected residuals of a TBI no probative value as he is not competent to opine on such complex medical questions.  The Veteran has not submitted any competent medical evidence relating his tinnitus to his service-connected residuals of a TBI.

In light of the evidence of record, including the Veteran's audiometric test results and the most probative opinion regarding his tinnitus, the Board finds that his claimed chronic hearing loss and tinnitus are not linked to service, or to his service-connected residuals of a TBI.  While service connection is possible for hearing loss and tinnitus which first met VA's definition of disability after service, it is not warranted in this case because the most probative evidence of record shows that the Veteran does not have cognizable hearing loss bilaterally, and his tinnitus is less likely than not related to service.  Hensley, supra, at 159.  Accordingly, reasonable doubt does not apply, and the Veteran's appeal of these issues is denied.


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.


REMAND

Remand is required in order to obtain medical nexus opinions regarding the Veteran's vision disorder, lumbar spine degenerative disc disease, and cervical spine strain with degenerative arthritis because the current examination reports are either incomplete or contradictory.

The Veteran should be given an opportunity to identify any healthcare provider who had treated him for his claimed vision disorder, lumbar spine degenerative disc disease, and cervical spine strain with degenerative arthritis.  Thereafter, any identified records that are not already included in the claims file should be obtained for consideration in the appeal.

Additionally, the Veteran should be provided with notice of how service connection may be granted on a secondary basis.

Entitlement to Service Connection for a Vision Disorder, to include as Secondary to Residuals of a TBI and Headaches

The Veteran contends in his July 2008 claim that he has vision problems due to his service-connected residuals of a TBI.  He also reported that his vision sometimes gets blurred for no apparent reason, and that "while this occurs often with my migraine headaches it also happens without them."  In his April 2010 substantive appeal, the Veteran reported that "I get blurred vision on and off and especially when I have the dizziness."  The Board notes that the Veteran is in receipt of service connection for residuals of a TBI, including for migraine headaches as a residual of a TBI.

The current medical opinions as to the Veteran's vision disorder are contradictory and frequently incomplete.  As such, a new VA medical opinion is required.

In an October 2008 eye examination report addressed to VA Compensation and Pension Services but drafted on private letterhead, the examiner opined:

The veteran's eye condition is not caused by or a result of his service.  Rationale:  The veteran's eye condition is one of myopia, or nearsightedness.  It is a normal condition and has no bearing on eye usage in the service or his motor vehicle accident [in the service].  His eyes and visual system are essentially normal.

In a June 2009 VA TBI examination, the Veteran reported that when watching sports, he has difficulty telling where the ball is or which player is which; he also reported having a frequent sense of distortion of his vision.  The examiner found that the Veteran's headaches are not associated with his blurry vision.  The examiner also found that the Veteran's vision appeared to be intact.

In a March 2010 VA examination of his headaches, the Veteran reported that he gets blurred vision when having migraine headaches.

In an April 2012 VA TBI examination, the examiner found that the Veteran's visual spatial orientation was normal, but that he experiences changes in vision-such as scotoma, flashes of light, and tunnel vision-which are associated with his headaches.

A medical opinion is required because neither the June 2009 nor the April 2012 VA examiner provided a rationale for their conflicting opinions as to whether the Veteran's vision symptoms are associated with his service-connected headaches.  Moreover, the March 2010 VA examiner merely transcribed the Veteran's complaints about his vision without providing either an opinion or a rationale.  Finally, while the October 2008 examiner included an opinion and rationale as to direct service connection, he did not discuss service connection as secondary to the Veteran's service-connected headache residuals of a TBI-likely because service connection for that disorder was not granted until a January 2009 rating decision.  Consequently, the Board finds that a VA medical opinion should be obtained to address the issues of direct and secondary service connection, to include both causation and aggravation.

Entitlement to Service Connection for Lumbar Spine Degenerative Disc Disease status post two surgeries, with Residual Lower Extremity Radicular symptoms

The Veteran contends in his July 2008 claim that he has a back disorder due to his motor vehicle accident in service.  In his February 2009 notice of disagreement, he reported that he injured his back several times in service, including while playing basketball and, later, in his motor vehicle accident.  He accurately noted that there are multiple reports of treatment for a back disorder in his service treatment records; these include records dated December 1995, July 1997, September 1997, and June 1998.

The current medical opinions as to the Veteran's lumbar spine disorder are contradictory, and thus a new VA medical opinion is required.  In a September 2008 VA spine and joints examination, the examining physician opined:

Regarding his back condition he had back strain during his military service with recurrent episodes of pain, but no significant work or activity limitations.  He had [a] Worker's Comp[ensation] back injury in 2001 with radiation of pain and subsequent lumbar disk surgery.  His current back symptoms appear to be primarily related to his disk disease, which manifested and [was] accepted under Worker's Comp[ensation] with two subsequent surgeries after 2001.  His earlier low back strain is less likely than not causing his current symptoms and limitations from his back condition.

By contrast, in a June 2009 VA TBI examination, the examining physician opined that the Veteran has:

Peripheral neurologic damage, secondary to low back injury, which as likely as not, occurred during the same motor vehicle accident [as caused his TBI, during service].  The nature of that accident was quite severe, and even though he was constrained there was a massive impact involving the junction of the torso and the lower extremities.  He had no back problems prior to that time.

A determination as to service connection is frustrated by the fact that the September 2008 examiner did not discuss whether the Veteran has any chronic lumbar spine disorder resulting from his in-service injuries, and the June 2009 examiner did not discuss the impact, if any, of the Veteran's post-service low back injuries on his current lumbar spine diagnoses.  Thus, the Board finds that a VA medical opinion should be obtained to determine whether it is at least as likely as not that the Veteran has any low back disability which resulted from his service, to include the basketball injury and motor vehicle accident therein.

Entitlement to Service Connection for a Cervical Spine Strain with Degenerative Arthritis

The Veteran contends in his July 2008 claim that he has a neck disorder due to his motor vehicle accident in service.  In his February 2009 notice of disagreement, he attributed his neck disorder to "whiplash incurred in the [motor vehicle accident]," and stated that "this would be proven by the VA x-rays which showed cervical spine degenerative arthritis."

In a September 2008 VA spine and joints examination report, the examiner found that the Veteran "does not have a clear diagnosis of ongoing neck problems at this time," and ordered x-rays "to see if there [are] any posttraumatic changes."  In an addendum drafted later that month, the examiner diagnosed the Veteran with a cervical spine strain with degenerative changes based on x-ray evidence.  However, the examiner did not provide an opinion or rationale as to whether the Veteran's cervical spine strain with degenerative changes was related to service.

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.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Because the September 2008 VA examiner's addendum did not provide an adequate opinion following the cervical spine x-ray and diagnosis, a VA medical opinion is required.

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be provided with notice of how service connection may be granted on a secondary basis.

2.  The Veteran should be given an opportunity to identify any healthcare provider who treated him for his vision disorder, lumbar spine degenerative disc disease, and cervical spine strain with degenerative arthritis.  After securing any necessary authorization, obtain all identified treatment records which are not already of record.  All reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, that should be documented and the Veteran allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

3.  After obtaining the records described above, obtain a medical opinion as to the etiology of the Veteran's vision disorder.  The claims file should be made available for review of the Veteran's pertinent medical history.

The medical evaluator should offer an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's vision disorder resulted from his military service, including from his in-service motor vehicle accident.

The medical evaluator also should offer an opinion as to whether it is at least as likely as not (50 percent or better probability) that the any vision disorder was caused, or aggravated beyond its natural progression, by his service-connected residuals of a TBI, including headaches.

In reaching an opinion, the medical evaluator should consider the Veteran's lay statements, as well as the October 2008 eye examination report, the June 2009 VA TBI examination report, the March 2010 VA headaches examination report, and the April 2012 VA TBI examination report.

The rationale for any opinion offered should be provided.  If the medical evaluator is unable to render an opinion without a resort to speculation, then the medical evaluator must explain why this is so.

A medical opinion without examination will be sufficient in this case unless a new examination is deemed necessary by the VA medical professional authoring the opinion.

4.  After obtaining the records described above, obtain a medical opinion as to the etiology of the Veteran's lumbar spine degenerative disc disease.  The claims file should be made available for review of the Veteran's pertinent medical history.

The medical evaluator should offer an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's lumbar spine degenerative disc disease resulted from his military service, including from his in-service basketball injury or motor vehicle accident.

In reaching an opinion, the medical evaluator should consider the Veteran's lay statements, the multiple reports of treatment for a back disorder in his service treatment records, including in records dated December 1995, July 1997, September 1997, and June 1998; the September 2008 VA spine and joints examination report; and the June 2009 VA TBI examination report.

The rationale for any opinion offered should be provided.  If the medical evaluator is unable to render an opinion without a resort to speculation, then the medical evaluator must explain why this is so.

A medical opinion without examination will be sufficient in this case unless a new examination is deemed necessary by the VA medical professional authoring the opinion.

5.  After obtaining the records described above, obtain a medical opinion as to the etiology of the Veteran's cervical spine strain with degenerative arthritis.  The claims file should be made available for review of the Veteran's pertinent medical history.

The medical evaluator should offer an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's cervical spine strain with degenerative arthritis resulted from his military service, including from his in-service motor vehicle accident.

In reaching an opinion, the medical evaluator should consider the Veteran's lay statements, the report of a complaint of a neck disorder in his service treatment records in September 1997, and the September 2008 VA spine and joints examination report and addendum.

The rationale for any opinion offered should be provided.  If the medical evaluator is unable to render an opinion without a resort to speculation, then the medical evaluator must explain why this is so.

A medical opinion without examination will be sufficient in this case unless a new examination is deemed necessary by the VA medical professional authoring the opinion.

6.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If any claim remains denied, the appellant and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs