Citation Nr: 1338762 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 07-25 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for degenerative disc disease of the cervical spine (neck disability). 3. Entitlement to service connection for diabetes mellitus, to include as secondary to service connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to December 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of June 2006 and April 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the service connection claims noted above. The Veteran's case was remanded in March 2011 for further development, and has since been returned to the Board for appellate action. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS. The Board has reviewed both the paper and electronic claims files in rendering this decision. The issue of entitlement to service connection for diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is clear and unmistakable evidence demonstrating that the Veteran's low back disability existed prior to his entry into active military service; however, the evidence does not clearly and unmistakably show that his low back disability was not aggravated by military service. 2. The preponderance of the evidence is against finding that the Veteran's neck disability is etiological related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. The Veteran's pre-existing low back disability was aggravated during his military service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). 2. The Veteran's neck disability is not due to or the result of any incident of service. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in July 2005, March 2006, and August 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced national service organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. Records from the Social Security Administration (SSA) also have been associated with the claims file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). In this case, the Veteran was provided VA examinations in March 2011 and May 2012. The examiner considered the Veteran's complaints, as well as the service treatment records, post-service treatment records, and conducting a physical examination. Based on the foregoing, the examiner concluded that the Veteran's back and neck disabilities were not due to or aggravated by an event, disease, or injury incurred during active service. Moreover, the examiner found that the Veteran's back disability preexisted service and was not aggravated thereby. Therefore, as the opinions were based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinion provided, the Board concludes that the opinions provided are adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claims. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Moreover, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2013). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Given these provisions, the standard of proving a claim based on "aggravation" changes depending on whether the pre-existing disability was noted on the entrance examination report, or whether it was not but the presumption of soundness is nevertheless rebutted. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Factual Background The Veteran contends that he has a low back and neck disability directly related to his military service. Alternatively, he contends that a preexisting low back disability was permanently aggravated by his military service. A review of the Veteran's service treatment records shows multiple complaints of back pain (thoracic and lumbar areas), but no complaints of neck pain. In his report of medical history at induction in February 1971, the Veteran indicated that he had a history of back trouble. Physical examination revealed that he had no back disability or musculoskeletal problems. In April 1971, the Veteran sought treatment following a fall on his back. He described an injury to the upper lumbar/lower thoracic area of the spine. Noted was a history of "old trauma" to the back. Tenderness and spasm were appreciated. The impression was a low back contusion. A May 1971 service treatment record notes that the Veteran injured his back playing football two years prior (before service). He endorsed current low back pain with radiation into both lower extremities. He had low back tenderness and pain during straight leg testing. X-ray was within normal limits. He was treated for back complaints many times that same month, but was found to have no limitation. During his June 1971 follow-up, the Veteran reported non-radiating low back pain following a fall five or six months prior. He reported occasional pain at rest and it is aggravated by an increase in activity. The treating professional noted good range of motion, but could not reach his toes. He had no spasm, but diffuse tenderness over the paralumbar musculature was appreciated. Gait, motor strength, sensory examination, and deep tendon reflexes were all normal. X-rays at that time were negative. In the Veteran's own reported of medical history, dated in October 1972, he denied any recurrent back pain. Discharge physical examination in November 1972 showed the spine was within normal limits, and there was no residual back disability listed. Following service, the first treatment records showing complaints for neck pain were dated in the mid-1990s. Specifically, a May 1995 private treatment record shows the Veteran's complaints of neck pain following a head-on motor vehicle collision. He sought follow-up for his neck pain again in December 1995. At no time during this private treatment did the Veteran report any in-service injury to the neck or back. Additionally, in an August 1996 therapy social history report, the Veteran denied any chronic pain in the back that "may be quite severe." According to a June 2000 VA treatment record, the Veteran sought treatment for complaints of headaches. The treating physician noted that the Veteran's neck was supple with a full range of motion. During a November 2002 VA treatment, the Veteran reported a history of a "pinched nerve" in his back. He stated it started during hospitalization at a VAMC. He did not report any in-service injury to the neck or back at that time. During an MRI of the cervical spine in June 2003, the Veteran was diagnosed as having mild disc bulging at C5-6 with suspected small marginal osteophytes. There was a mild degree of left neural foraminal narrowing at C5-6. The radiologist also noted that there were more prominent osteophytes and disc protrusion at C6-7, which was thought to be a small herniation. In conjunction with the MRI, there is no evidence showing that the Veteran report an in-service injury to the neck, he was merely undergoing the MRI following complaints of neck pain. Later VA treatment records identified the Veteran's neck disability as degenerative disc disease of the cervical spine. In a May 2004 VA treatment record, the Veteran reported a history of chronic neck pain related to an old motor vehicle accident. In a May 2005 letter from the Veteran's private treating physician, he indicated that he has treated the Veteran for severe cervical arthritis with radiculopathy. He noted that the Veteran reported that while he was in the Army, he had a fall during which he injured his neck and back. The physician stated that "[i]t appears that his present cervical arthritis condition may have been related to his previous military related injury." In an April 2007 examination for the State of Alabama, the Veteran was found to be disabled due to his worsening chronic cervical spine with radiation and lumbosacral pain. The examining physician opined that the Veteran had a permanent disability, but did not opine as to whether his current neck and back complaints had any relationship to service. In a November 2007 note from the Veteran's pain specialist, he indicated that the Veteran has been undergoing treatment since May 2005 for chronic pain. The treating professional indicated that it is his understanding that the Veteran had a fall in the military in 1971 that "could have caused progression of degenerative disc disease [and] pain." Private treatment records dated from 2005 to 2007 show a history of treatment for chronic low back and neck pain. These symptoms were caused, in part, by degenerative disc disease of both the lumbar and cervical spine. In December 2007, the Veteran was afforded a VA examination of the lumbar spine, during which the examiner diagnosed low back pain with normal objective findings. X-rays were within normal limits. Following review of the claims file, and examination and interview of the Veteran, the examiner opined that his current low back symptoms were less likely than not caused by his spine contusion during military service. In so concluding, the examiner noted that at service separation the Veteran denied any back problems/pain, and separation physical examination was within normal limits as no chronic back disability was diagnosed at that time. In February 2008, the Veteran was afforded a VA examination of the cervical spine, during which the diagnosis of degenerative disc disease of the cervical spine was confirmed. Following review of the claims file, and interview and examination of the Veteran, the examiner opined that his degenerative disc disease of the cervical spine is more likely than not related to degenerative changes caused by natural aging and less likely than not related to military service more than 30 years prior. In an undated prescription form, the Veteran's treating physician indicated that it is "possible" that the Veteran's low back and up back pain have "some relation" to his in-service military injury. In March 2008, the Veteran's private treating physician for pain management submitted a letter stating his opinion that the Veteran's "football injury and falling down the flight of stairs is the probable source of [his] progressive degenerative disc [and] degenerative joint disease seen today." In this letter, the physician only referenced the Veteran's low back disability and not his neck. Following the Board's March 2011 remand, the Veteran's claims file was sent to the December 2007 and March 2008 VA examiner for a clarification opinion. The examiner opined that degenerative joint disease of the low back preexisted service due to a low back injury, and opined that it was not aggravated beyond the natural progression by his military service. In reaching this conclusion, the examiner described the in-service treatment for the Veteran's low back complaints, including his report of a pre-service football injury in the low back area. She also noted that two radiologic studies of the lumbar spine were performed and read as normal. She also noted the normal discharge physical examination, and the fact that the Veteran did not seek treatment for low back complaints until the 2000s. In May 2012, the Veteran's cervical spine claim was reviewed by the same VA examiner. She reviewed the entire claims file and contentions presented by the Veteran, and opined that the Veteran's cervical spine disability is less likely than not a result of an in-service event, injury, or illness. In reaching this conclusion, the examiner noted age is the strong risk factor for such degenerative changes in the neck, as well as genetics and body weight. She also noted that the Veteran's in-service history showing no cervical spine complaints or treatment. Furthermore, there were no complaints of neck problems until the 2000s. The Veteran continues to undergo VA and private treatment for his neck and low back disabilities. Analysis Low Back Although the Veteran reported a back injury at induction, given the negative clinical findings, the Board concludes that a low back condition was not "noted" at entry for the purposes of 38 U.S.C.A. §§ 1111 and 1153. Thus, the Veteran is presumed sound unless there is clear and unmistakable evidence of a preexisting disability. The Board notes that the presumption of soundness on entrance cannot be overcome simply based on the representations of the Veteran during the entrance examination or thereafter. See Miller v. West, 11 Vet. App. 345, 348 (1998) (holding that a veteran's self-report that he had previously suffered from "depression or excessive worry" prior to service was insufficient to rebut the presumption of soundness as was found in 38 U.S.C.A § 1111); see also Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In this case, however, there is both lay and medical evidence of a low back disability prior to military service. The Board, therefore, finds that there is clear and unmistakable evidence that the Veteran's low back disability preexisted service. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). As set forth in VAOPGCPREC 3-2003, the Board must also determine if there is clear and unmistakable evidence that the disorder was not aggravated during service. Based on the evidence discussed below, the Board concludes that there is not clear and unmistakable evidence that the low back disability was not aggravated during his service. The Veteran was noted to have a history of a football injury to the low back prior to his induction. No residuals of any low back disability were found at that time. During service, however, he underwent treatment for low back complaints multiple times, and the service treatment records confirm a back injury with residuals. He has competently reported low back problems since service. The Board finds that the competent and probative evidence of record shows that the Veteran's low back disability symptoms worsened during service or at that time he began to experience new symptoms in the low back. There are both positive and negative opinions related to the etiology of the Veteran's low back disability. The March 2011 examiner found that his low back disability preexisted service and was not aggravated thereby. In reaching this conclusion, she pointed to the fact that at separation he did not have any chronic low back disability noted and was not treated again until the 2000s. There are multiple positive opinions, including some that were somewhat equivocal, regarding the onset and etiology of the Veteran's low back disability. Importantly, the Veteran's pain physician, in March 2008, indicated that both the Veteran's football injury and his falling down a flight of stairs in service are both the probable source of the Veteran's degenerative disc disease/degenerative joint disease of the lumbar spine. As such, the Board concludes that the evidence does not clearly and unmistakably establish that the Veteran's low back disability was not aggravated by his military service. Therefore, the Board concludes service connection is warranted. Cervical Spine Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the grant of service connection for a cervical spine disability. It is clear from the record that the Veteran has a current neck disability. As noted above, the Veteran contends that this neck disability was due to an in-service injury. Based on the evidence of record, the Board concludes it was not. The Board finds the opinion in the May 2012 VA examiner's report to be credible and highly probative. The report was based on a careful review of the claims file, and review of previous VA examinations that included interviews of the Veteran as well as physical examinations. Further, a complete and through rationale is provided for the opinion rendered. The May 2012 examiner noted that Veteran did not have significant neck complaints until the 2000s, which was many years after discharge from service. Additionally, she indicated that there were no complaints of neck problems during service or at separation. Further, she opined that the degenerative changes in the Veteran's neck were likely due to age, genetics, and body weight and were not otherwise related to and in-service event, injury, or disease. As such, she concluded that the Veteran's neck disability is less likely than not related to an event, injury, or disease while on active duty. The Board is aware that the May 2012 VA examiner based her opinion, in part, on a somewhat inaccurate factual basis. She erroneously based her opinion, in part, on the fact that the Veteran did not seek treatment for a neck disability until the 2000s. In fact, the evidence shows that the Veteran injured his neck in May 1995 following a post-service motor vehicle accident. Indeed, this evidence is not positive evidence in support of the Veteran's claim for service connection and would likely confirm the May 2012 examiner's opinion that the Veteran's current neck disability is unrelated to service. Even if the May 2012 examiner accurately described the onset of the Veteran's neck disability, the Board is confident that her opinion would not have changed and there is no prejudice to the Veteran in proceeding with decision in this matter. Ultimately, the Board finds that the May 2012 examiner's opinion is adequate as her rationale includes many factors, other than the date of onset, for why she finds the Veteran's current neck disability is less likely than not related to service. The Board is aware that there is an equivocal private opinion related to the Veteran's back disability as described above. Namely, a May 2005 note from the Veteran's private physician indicating that the Veteran's current neck disability may be related to his military injury. The Board finds, however, that this opinion is not accompanied by further discussion or supportive clinical rationale with respect to the neck disability. The Board notes that a medical opinion that is based on speculation, without supporting clinical evidence, does not provide the required degree of medical certainty and would be of no probative value. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 5 Vet. App. 177, 180 (1995); Reonal v. Brown, 5 Vet. App. 458, 460 (1993). In that vein, the Court has held that medical opinions that are equivocal in nature, such as those expressed in speculative language (e.g., "could have caused"), do not provide the degree of certainty required for medical nexus evidence. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Finally, the medical opinion may not, however, be discounted solely because a medical professional did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Rather, the question is whether the medical professional was informed of all relevant facts in rendering a medical opinion. Id. Although this private physician is competent to provide this opinion, the Board finds that this medical professional was not informed of all the relevant facts in rendering his medical opinion and did not include a reasonable degree of medical certainty. As such, the Board finds the May 2005 private opinion to lack any probative value. Moreover, the Board notes that there is no clinical evidence of record showing any treatment for head/neck injuries during service. The Board has considered the Veteran's contentions that he had a neck injury during service and that he has experienced ongoing neck problems since service. The Board, however, has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the "inherent characteristics" of the Veteran's current statements as to a continuity of a neck injury during service and neck problems from service are inconsistent with the objective medical record and his own more contemporaneous statements. In that regard, the Veteran was not shown to have any chronic neck disability at service discharge, nor did the Veteran complain of any neck problems until 1995, and then again in the early-2000s. The Board is aware that the Veteran was treated for pain in the thoracic spine and low back during service, but no neck complaints were reported. Of even greater significance, the Veteran was seen numerous times following service for musculoskeletal complaints, including back complaints, and he did not bring up his neck problems. Additionally, during his 1995 treatment following a motor vehicle accident, he did not report any preexisting neck injury or neck injury incurred during service. And as noted above, his first diagnosis of degenerative joint disease of the neck appears to have occurred in the early-2000s. As such, the Board finds that had the Veteran been experiencing ongoing neck problems since service, it would have been reasonable for him to make such an assertion to his treating professionals between service separation and the present. The Board finds that all these factors weigh heavily against finding that the Veteran's current assertions of continuity of symptomatology since service to be credible. The Board also has considered the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. However, this is not a case in which the record is merely silent regarding whether or not he experienced injury or complaints in service. Rather, this is a case in which the record shows no neck disability or complaints at separation from service, and no neck complaints until 1995. Additionally, he did not describe any neck problems to treating personnel during the times he was treated for his other musculoskeletal complaints prior to the mid-2000s. The Veteran had every opportunity to discuss these complaints to treating personnel, but did not do so. Moreover, treating professionals have indicated that his neck disability is related to an old motor vehicle accident-the only one of which was shown in 1995. As such, there is affirmative evidence, rather than merely a lack of contemporaneous evidence. In short, the Board gives greater credence and weight to the contemporaneous and near contemporaneous medical records and the Veteran's statements when seeking such treatment and than his recent assertions of continuity of symptomatology and in-service injuries to the neck, which were first made only after filing his claim for service connection. Therefore, the Board finds that the Veteran's allegations of an in-service neck injury and continuity of symptomatology are not credible. In short, the most probative medical evidence specifically rules out a relationship between the Veteran's current neck disability and an in-service injury. Again, the Board places more weight on the opinion of the competent VA medical professional who provided the May 2012 opinion, based on review of the medical records and claims file and review of the Veteran's interviews and physical examinations, than on the Veteran's lay assertions that his current neck disability is related to an in-service injury. For the same reasons as discussed above, the Board finds that the Veteran's statements with respect to his in-service neck injury and continuity of neck symptoms lack credibility. In summary, the preponderance of the evidence demonstrates that the Veteran's degenerative joint disease of the cervical spine was not caused or aggravated by his military service. In that regard, the Board finds the conclusions of the May 2012 VA opinion provider of significantly more probative value than those of the Veteran based on his non-credible claims of continuity of neck symptomatology from service, and more probative than the May 2005 opinion from the Veteran's private treating physician. As such, the Board finds that the benefit of the doubt doctrine is not for application, and that the claim must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Service connection for a low back disability is granted. Service connection for a cervical spine disability is denied. REMAND Unfortunately, the Board finds that further evidentiary development is necessary regarding the Veteran's service connection claim for diabetes mellitus, to include as secondary to his service-connected PTSD. In its March 2011 remand, the Board specifically requested that the VA examiner determine whether the Veteran's diabetes mellitus is at least as likely as not related to, proximately due to, or aggravated by his service-connected PTSD. The Board requested that the examiner provide a complete rationale for the opinion given. The March 2011 examiner provided a negative opinion finding "no medical nexus between diabetes mellitus and PTSD. Therefore, diabetes mellitus is not caused by or related to PTSD. [Diabetes mellitus] is not aggravated beyond natural progression by PTSD." She did not, however, provide any rationale for her opinion. The Board is obligated by law to ensure that the Agency of Original Jurisdiction (AOJ) complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As such, the Veteran's claim must again be remanded so the Veteran can be afforded an adequate examination to determine the nature and etiology of his claimed diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should forward the Veteran's claim file, including any pertinent evidence in electronic format for a VA records review and opinion by someone with the appropriate expertise to determine the nature and etiology of his claimed diabetes mellitus. The examiner should indicate that he/she reviewed the file in conjunction with the examiner. The examiner is asked to provide the following opinion: Is it at least as likely as not (a 50 percent or better probability) that the Veteran's diabetes mellitus is etiologically related to his active service or was caused or permanently worsened by his service-connected PTSD. The examiner should specifically discuss the Veteran contention that his PTSD has aggravated his diabetes mellitus. The examiner(s) is asked to provide a complete rationale for any opinions reached. 2. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he 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 LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs