Citation Nr: 1751094 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 96-39 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Veteran represented by: Robert V. Chisholm, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to November 1984, February 1991 to July 1991, August 1991 to March 1992, January 1997 to October 1997, and from November 2001 to November 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. As a preliminary matter, the Board notes the extensive procedural history in this case. Most recently, the Board issued a decision in April 2016 denying, in pertinent part, entitlement to service connection for cervical spine disability. An appeal followed. In May 2017, the United States Court of Appeals for Veterans Claims (Court) granted the parties' joint motion for partial remand (JMPR). Specifically, the Court set aside the portion of the Board's April 2016 decision denying Veteran's claim for service connection for cervical spine, and remanded the matter to the Board for readjudication consistent with the JMPR. In doing so, the Court indicated that the Board failed to provide an adequate statement of reasons or bases for finding that the Veteran's cervical spine disability is not related to service, specifically in regard to the question of direct service connection. In January 2012, the Veteran appeared with his representative for a travel Board hearing before the undersigned. A transcript of that proceeding has been associated with the record. This matter was remanded by the Board in January 2015 for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A review of the record reveals that the claim must again be remanded for additional development prior to appellate consideration. Where, as here, VA undertakes to provide an examination or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In that regard, the Board notes that the Veteran was most recently provided with a VA cervical spine examination in March 2015. Report of the March 2015 VA examination reflects, in pertinent part, the Veteran's statements regarding multiple motor vehicle accidents (MVAs) during service. In particular, the Veteran noted a June 1982 MVA wherein the Veteran lost control of his vehicle and hit a tree, injuring, among other things, his neck. Additionally, the Veteran reported an accident resulting in a neck injury during his service in Korea. Specifically, the Veteran indicated he had fallen out of a moving military vehicle and hit the asphalt. The Veteran indicated initially treating his neck pain conservatively with medication; however, that the pain became worse in the late 1980s and/or early 1990s, and more severe in or around 1996. The Veteran was diagnosed with degenerative joint disease (DJD) of the cervical spine, spinal stenosis, and radiculopathy of the upper left extremity. The examiner opined that the Veteran's claimed condition is less likely than not incurred in or aggravated by one or more periods of active service. In doing so, the examiner noted that there is no evidence of chronic cervical neck symptoms prior to the September 1996 diagnosis of DJD of the cervical spine. The examiner noted that following the June 1982 MVA, imaging studies were performed and found to be unremarkable for any cervical neck disability. Moreover, the examiner noted that the Veteran's September 1984 separation examination was negative for any abnormal cervical neck findings. Additionally, the examiner noted there is no evidence to support a finding that the Veteran's cervical spine disability was aggravated beyond its natural progression by any period of active service thereafter. The Veteran has reported experiencing next pain since his initial injury in June 1982. In particular, at the March 2015 VA examination, the Veteran indicated initially treating his neck pain conservatively with medication; however, that the pain became worse in the late 1980s and/or early 1990s, and more severe in or around 1996. The Board notes that the Veteran was diagnosed with DJD of the cervical spine in September 1996. However, the March 2015 VA examiner noted that there is no evidence of chronic cervical neck symptoms prior to the September 1996 diagnosis of DJD of the cervical spine. It is not clear whether or to what extent the examiner considered the Veteran's lay statements regarding ongoing symptomatology. The apparent failure to consider the Veteran's statements regarding matters which he is competent to testify to renders the examiner's opinion inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Additionally, the Board notes that in a statement dated in September 2017, the Veteran, through his representative, challenged the adequacy of the March 2015 VA cervical spine examination, which provided a negative nexus opinion. In doing so, the Veteran argued that the examiner's opinion is inadequate to the extent it failed to adequately address the various lay statements regarding ongoing symptomatology in and since service, and provide adequate reasons and bases in support of its conclusions. The Veteran requested, in pertinent part, a remand to obtain a new examination and opinion. In light of the foregoing, the Board finds that the Veteran has not been provided with an adequate VA examination for purposes of determining service connection that adequately considers all of the evidence of record pertaining to his claimed disability. As such, the Board must remand for additional development. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examination by an appropriate medical professional to prepare an opinion with respect to the nature and etiology of any claimed cervical spine disability, to include DJD. The electronic claims file must be made accessible to the examiner for review. Following a review of the claims file and medical history, the VA examiner must offer an opinion as to the following: a. Does the Veteran have a cervical spine disability? If so, the examiner should identify the specific disorder and whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability is etiologically related to military service. b. Whether it is at least as likely as not (a 50 percent or better probability) that such disability was aggravated (i.e., permanently worsened beyond the normal progression of the disease) during a period of active duty service. (Aggravation is defined as a worsening of the underlying condition as compared to an increase in symptoms.) Any opinion rendered should reflect consideration of (i) the Veteran's lay statements regarding ongoing symptomatology since the initial June 1982 MVA in service, (ii) the September 1996 diagnosis of DJD of the cervical spine; and (iii) the June 2002 limited duty profile implemented due to chronic cervical neck symptoms. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Thereafter, readjudicate the issue remaining on appeal. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. The Veteran 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). _________________________________________________ THOMAS H. O'SHAY 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) (2017).