Citation Nr: 1545915 Decision Date: 10/28/15 Archive Date: 11/02/15 DOCKET NO. 02-11 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) from a December 2001 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO denied service connection for disabilities of the cervical spine, low back, right knee, right hip, and right leg. The RO also assigned a disability rating of 20 percent for right ankle fracture residuals. In June 2004, the Board remanded the case for the development of additional evidence. In a March 2006 decision, the Board denied service connection for cervical spine, low back, right knee, right hip, and right leg disabilities. For each of those disabilities, the Board denied service connection on a direct basis as well as on a secondary basis. The Board also denied a rating higher than 20 percent for the right ankle disability. The Veteran appealed the March 2006 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2008 decision, the Court affirmed the Board's decision with respect to the rating for the right ankle disability, and affirmed the Board's denial of service connection on a secondary basis for the other claimed disabilities. The Court set aside the Board's decision with respect to direct service connection for disabilities of the cervical spine, low back, right knee, right hip, and right leg, and remanded those claims for further proceedings. In June 2010, the Board remanded the claims for additional development. In November 2014, the Board denied service connection for a low back disability, a right knee disability, a right hip disability, and a right leg disability; it remanded the issue of entitlement to service connection for a cervical spine disability for additional development of the record. In the November 2014 decision, the Board noted that in a March 2014 brief, the Veteran's attorney presented argument on the theory of entitlement to service connection for the cervical spine, lumbar spine, right hip, right knee, and right leg as secondary to the Veteran's service-connected right ankle. It observed that the Board had denied those secondary service connection claims in the March 2006 decision, and that the Court affirmed the denials on a secondary basis. It indicated that, as the claim for secondary service connection had been resolved, and the matter was referred to the Agency of Original Jurisdiction (AOJ) to seek clarification from the Veteran and his attorney as to whether they wish to again raise a claim of entitlement to secondary service connection for the cervical spine, lumbar spine, right hip, right knee, and right leg disabilities, and if so, for appropriate action. It does not appear that any inquiry with respect to these issues has been undertaken. Thus, this matter is again referred to the AOJ for appropriate action. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In November 2014, the Board remanded the instant issue to afford the Veteran a VA examination. It noted that, while the available service treatment records were negative for a neck injury, they reflected that in late January 1964, the Veteran presented with complaints of numbness in his neck, reporting that it had been stiff for approximately four days. Physical examination was negative. The Veteran was seen in early February 1964 with swelling in his neck and a temperature of 99 degrees. He was admitted for in-patient treatment for a fever of undetermined origin, where his temperature rose to 104 degrees. On VA examination in February 2015, the examiner indicated that there were no service treatment records in the claims file or electronic file. She also indicated that while the Veteran had submitted numerous lay statements, none provided an eye witness account of the event claimed by the Veteran to have caused his neck disability. In July 2015, the RO requested an addendum to the February 2015 examination report, pointing out that service treatment records were associated with the electronic file. In August 2015, a VA physician reviewed the record, including service treatment records, and concluded that the current cervical spine condition was not related to complaints during service. In September 2015, the Veteran's attorney argued that the February 2015 examination and August 2015 addendum reports were inadequate for the purpose of deciding the claim. Specifically, she argued that the examiners failed to consider the lay statements of record, maintaining that such were evidence of continuity of symptomatology. Having reviewed the record and considered the Veteran's arguments, the Board concludes that an additional VA examination is warranted. In this regard, the Board notes that the February 2015 examiner incorrectly stated that there were no statements of eye witness accounts of the Veteran's in-service injuries. However, the Board observes that a statement signed by B.W., a service colleague, on September 1, 2004 and received by VA on September 15, 2004 describes an incident during which the Veteran fell during a rappelling exercise. Moreover, other lay statements of record are from various individuals who have known the Veteran for many years, some prior to his entry into service. On future examination, the examiner should specifically discuss these statements and whether they support the Veteran's claim of continuity of symptoms since service. In light of the above discussion, the Board has determined that additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination to determine the nature and etiology of the Veteran's cervical spine disability. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should elicit a complete history, the pertinent details of which should be included in the examination report. Upon review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current cervical spine had its clinical onset during active service or is otherwise the result of a disease or injury in service. The examiner is asked to explain the reasons underlying any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. In discussing his or her rationale, the examiner should specifically address the evidence of record, including the various lay statements, to include: the statement signed by B.W., a service colleague, on September 1, 2004 and received by VA in VBMS on September 15, 2004, which describes an incident during which the Veteran fell during a rappelling exercise; additional lay statements submitted by friends and colleagues, uploaded to VBMS with receipt date of February 23, 2000. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions, and that of the others, must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed cervical spine disability. If the examiner is unable to offer any of the requested opinions, it is essential that she offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Then, after undertaking any additional development that is deemed warranted, readjudicate the claims on appeal, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).