Citation Nr: 1340949 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-26 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for hypertension, claimed as secondary to service-connected left ankle fracture residuals with below-the-knee amputation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to February 1971, to include service in the Republic of Vietnam and receipt of a Purple Heart. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ) in May 2013, and a transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for a cervical spine disability. Specifically, he asserts that he sustained trauma to the cervical spine during a September 1970 helicopter crash in the Republic of Vietnam. At his May 2013 Board videoconference hearing, the Veteran testified that he "went through" a 50-caliber machine gun when the helicopter hit the ground, and that he suffered a concussion when his head made impact. However, he was unable to indicate whether he felt any pain specific to the cervical spine immediately after the crash, as he had suffered multiple other injuries to the body and bilateral legs at that time which had caused pain throughout his entire body. The Veteran further testified that he suffered from cluster headaches in the months following the crash due to the impact that his head made during the accident. In addition, the Veteran testified that he shot over 1,000,000 rounds of ammunition on M16 and Stoner 63 assault rifles during his service in Vietnam, which may have also contributed to his current cervical symptomatology. The Veteran's service records confirm that he was involved in a helicopter crash in the Republic of Vietnam on September 15, 1970, which resulted in several injuries: posterior dislocation of the right knee, open fracture of the left medial malleolus, fracture of the lateral malleolus, fractured nose, concussion, and a spinal fracture at T12-L4. Furthermore, treatment notes in the months following the crash indicated that the Veteran suffered from headaches. The Board reiterates that the Veteran was awarded the Purple Heart and has since been service connected for several disabilities stemming from the September 1970 helicopter crash: left ankle fracture residuals with below the knee amputation, chronic venous insufficiency of the right lower extremity, status post right knee total replacement, depressive disorder, L3 compression fracture with arthritis, nasal fracture with slight deformity and septal deviation and partial right obstruction, multiple facial lacerations, and residuals of cerebral concussion. The Veteran underwent a cervical laminectomy in 1999 and later underwent a cervical spine fusion. A review of the Veteran's VA treatment records reveals that cervical spine fusion, osteoarthritis, and cluster headaches remain on his active problems list. The Veteran was afforded a VA spine examination in July 2008, at which time he was diagnosed as having postoperative anterior cervical spine fusion for cervical disk disease. The VA examiner acknowledged the in-service back injury involving the helicopter accident, and further noted that the Veteran "has also had some neck pain." The Veteran reported having some soreness and tenderness over the cervical spine. The examiner indicated that the Veteran reported using a machine gun in service, with no other injury noted; however, it is unclear if this statement by the examiner was meant to be inclusive of the multiple documented injuries resulting from the September 1970 helicopter crash. Following a brief physical examination, the VA examiner simply concluded that the Veteran's "cervical spine more likely is a natural occurring phenomenon that is not related to his lower back or his Service." The Board finds that a remand to provide the Veteran with another VA examination pertaining to his claim for entitlement to service connection for a cervical spine disability is required because the July 2008 VA spine examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). First, the examiner failed to provide any rationale whatsoever in support of the negative nexus opinion, other than simply describing the cervical spine symptomatology as "naturally occurring." See 38 C.F.R. § 4.2 (2013) (providing that where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Additionally, it is unclear if the examiner even considered trauma sustained in the documented September 1970 helicopter crash in determining the likely etiology of the Veteran's current cervical spine symptomatology. Curiously, the examiner only mentioned the helicopter crash when referencing the Veteran's service-connected lumbar disability, and indicated that there was "no other injury noted" other than using a machine gun in service when discussing the current cervical spine symptomatology. This is especially troubling in light of the competent lay testimony given by the Veteran describing the nature and severity of the injuries sustained as a result of the helicopter crash. Additionally, his service treatment records confirm that he was subsequently treated for concussions, headaches, facial scarring, and a nasal fracture as a result of the physical trauma experienced during the crash, suggesting trauma to the head and/or neck upon impact. Given the Veteran's confirmed in-service combat and documented injuries, it is possible that he also suffered some type of injury to his cervical spine. The Board therefore finds his statements in regard to injuring his cervical spine during combat to be credible and consistent with his active military service, although the exact nature of such injuries is unclear. See 38 U.S.C.A. § 1154(b) (West 2002). The Board highlights that a combat Veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. See 38 U.S.C.A. § 1154(b); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). The provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection for a combat Veteran, but ease or lessen the combat Veteran's burden of proof for demonstrating the occurrence of some in-service incident to which the current disability may relate. Clyburn v. West, 12 Vet. App. 296, 303 (1999); Wade v. West, 11 Vet. App. 302, 304-305 (1998); Caluza v. Brown, 7 Vet. App. 498, 507 (1995). In other words, while his history of in-service injury to his cervical spine is deemed credible, there remains the question as to whether the Veteran's current disability is related to that injury. Therefore, the Board finds a remand is necessary for a new VA examination and opinion with respect to the likely etiology of the Veteran's cervical spine symptomatology based upon a thorough review of the evidentiary record and supporting rationale, including consideration of the presumptive provisions for combat Veterans under § 1154(b). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran also seeks entitlement to service connection for hypertension. Specifically, he does not allege that his currently-diagnosed hypertension was incurred during his period of active duty service. Rather, he argues that his hypertension developed secondary to his service-connected left ankle fracture residuals with below-the-knee amputation. Service connection on a secondary basis is warranted when it is shown that disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). The Court has held that this includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). As indicated above, the Veteran is currently service connected for left ankle fracture residuals with below-the-knee amputation as a result of injuries sustained during the in-service helicopter crash in September 1970. He was afforded a VA hypertension examination in July 2008, at which time he was diagnosed as having hypertension. However, the VA examiner opined that "the Veteran's hypertension, diagnosed in 2002-3, has no relationship whatsoever to his current service connected disabilities." In correspondence dated in December 2012, the Veteran's private physician indicated that the Veteran has a history of hypertension as well as unilateral traumatic below-knee amputation. The physician explained that, "[t]hough not well defined or elucidated, there is evidence in the medical literature that lower limb amputation may lead to elevated blood pressure or hypertension. A proposed mechanism has been that decreased total intravascular plasma volume (due to loss of limb) could affect the hemodynamics and cardiac output of the heart. Neurocardiac hormones in turn be affected and this may lead to hypertension." Once VA undertakes to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr, 21 Vet. App. at 311; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Although the December 2008 VA examiner conducted an adequate evaluation of the Veteran's physical condition at the time, the Board notes that the examiner did not provide an adequately reasoned opinion as to the likelihood that the Veteran's currently diagnosed hypertension developed secondary to or was aggravated by his service-connected left ankle fracture residuals with below-the-knee amputation. Because the VA examiner did not provide a medical nexus opinion with an explanation concerning the relationship, if any, between the Veteran's current hypertension and his service-connected disability, the VA medical opinion is inadequate. See 38 C.F.R. § 4.2 (2013) (providing that where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Accordingly, remand is required. Although the December 2012 correspondence from the Veteran's private physician suggested an etiological link between lower extremity amputations and hypertension, it is not sufficient, by itself, to grant the Veteran's claim because it merely discusses medical literature in general and is not specific to the Veteran's unique symptomatology. In light of the above considerations, the Board concludes that another medical examination and opinion are needed with respect to the probable etiology of the Veteran's hypertension. Under these circumstances, evidentiary development is needed to fully and fairly evaluate the Veteran's claim of service connection for hypertension. 38 U.S.C.A. § 5103A (West 2011). Specifically, the AMC must arrange for the Veteran to undergo VA examination by a qualified professional, who must review the Veteran's claims file and his assertions and offer a well-reasoned etiological opinion as to whether the Veteran's current hypertension either developed secondary to or was aggravated by his service-connected left ankle fracture residuals with below-the-knee amputation. December 2012 correspondence from the Veteran's private physician suggesting an etiological link between lower limb amputation and hypertension must be discussed in the context of any negative opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated records from the Louis Stokes Cleveland VA Medical Center in Cleveland, Ohio, dated from July 2010 to the present. All records and/or responses received should be associated with the claims file. 2. Schedule the Veteran for a VA examination with a physician with appropriate expertise in order to determine the nature and probable etiology of his claimed cervical spine disability. The examination should include all necessary diagnostic testing and evaluation. The claims file, including a complete copy of this remand, must be made available for review of the pertinent medical and other history. The examiner should respond to the following: (a) Please identify all disabilities associated with the neck/cervical spine. (b) For each disability found, did it at least as likely as not (a 50 percent or higher degree of probability) have its clinical onset during the Veteran's period of service, or is it otherwise related to service, including to any in-service injury or disease, to include the documented September 1970 helicopter crash? The designated VA compensation examiner must consider the combat presumption under § 1154(b) in offering the requested opinion. The incurrence of the Veteran's alleged wounds to his cervical spine must be presumed due to his combat status. All opinions and conclusions expressed must be supported by a complete rationale. The examiner should reconcile any opinions with the service treatment records, post-service treatment records, and lay statements and testimony of the Veteran. 3. Schedule the Veteran for a VA examination to determine the likely etiology of his diagnosed hypertension. The VA examiner must review the Veteran's claims file, to include a copy of this remand and medical history, examine the Veteran, and provide an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's currently diagnosed hypertension was either caused or aggravated by his service-connected left ankle fracture residuals with below-the-knee amputation. The examiner must reconcile his/her opinion with the December 2012 correspondence from a private physician suggesting an etiological link between lower limb amputation and hypertension. A well reasoned opinion must be provided with a detailed explanation for all conclusions reached by the reviewer. Citations to the record or relevant medical principles should be included as necessary to explain the opinion(s), and a complete rationale must be given for all opinions and conclusions expressed. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. 4. Notify the Veteran that failure to report to any scheduled examination, without good cause, could result in a denial of his claims. See 38 C.F.R. § 3.655(b) (2013). 5. The adjudicator must ensure that the examination reports comply with this remand and the questions presented in the examination requests. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 6. After completing the requested actions and any additional notification and/or development deemed warranted, the claims on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought is not granted, the Veteran must be furnished a supplemental statement of the case and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).