Citation Nr: 18150098 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-29 222A DATE: November 14, 2018 ORDER New and material evidence having been received, the claim of service connection for spondylolisthesis at L5-S1 (lower back condition) is reopened; to this extent only the appeal is granted. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with anxiety and depressed mood, and as secondary to service-connected disabilities, is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to special monthly compensation (SMC) benefits based on the need for the regular aid and attendance of another person is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for spondylolisthesis at L5-S1 (lower back condition) is remanded. Entitlement to service connection for neck pain is remanded. Entitlement to service connection for nerve damage of the right arm/hand is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 7, 2013 is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a lower back condition was previously denied by a June 1991 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the June 1991 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a lower back condition, and raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in his favor, the Veteran’s acquired psychiatric disorder was proximately due to his service-connected lung cancer and metastatic cancer of the spine and brain. 4. The Veteran did not have a diagnosis of PTSD. 5. The Veteran’s service-connected metastatic lung cancer rendered him in need of regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The June 1991 rating decision denying service connection for a lower back condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. Evidence received since the June 1991 rating decision is new and material to reopen the claim for service connection for a lower back condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for secondary service connection for an acquired psychiatric disorder, to include adjustment disorder with anxiety and depressed mood, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 4. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f), 4.125(a). 5. The criteria for special monthly compensation based on the regular aid and attendance of another person are met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from July 1964 to April 1967. The Veteran died in August 2014. The Veteran’s surviving spouse (the appellant) has been substituted as the proper claimant for the Veteran. These matters are before the Board of Veterans’ Appeals (Board) on appeal from November 2009 and March 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The November 2009 rating decision denied in part entitlement to service connection for a lower back condition, neck pain, and nerve damage to the right arm and hand and entitlement to TDIU. The Veteran submitted a timely notice of disagreement in December 2009 appealing the November 2009 rating decision. The RO issued a statement of the case in October 2012 denying the service connection and TDIU claims. The Veteran filed a timely VA Form 9, Substantive Appeal in November 2012 appealing the issues adjudicated in the October 2012 statement of the case. The issues have not been certified to the Board; however, a review of the record illustrates the Veteran’s claims for entitlement to service connection for a lower back condition, neck pain, and nerve damage to the right arm and hand and entitlement to TDIU are properly before the Board. Therefore, the Board has jurisdiction over these issues. The March 2014 rating decision denied entitlement to service connection for PTSD and entitlement to SMC based on aid and attendance. A July 2014 rating decision awarded SMC based on housebound criteria effective November 7, 2013. Although the RO has granted SMC based on housebound criteria, the Veteran, and later, the appellant, continued to appeal the claim seeking SMC based on aid and attendance. Therefore, the claim is currently before the Board. Regarding entitlement to TDIU, the Veteran had the following compensable service-connected disabilities: lung cancer, rated at 100 percent since October 25, 2013; metastatic cancer of the spine associated with lung cancer, rated at 100 percent since November 7, 2013; metastatic cancer of the brain associated with lung cancer, rated at 100 percent since June 17, 2014; tinnitus, rated at 10 percent since June 26, 2009; and hearing loss, rated as noncompensable since June 26, 2009. Thus, from October 25, 2013, the Veteran had a 100 percent schedular rating. The assignment of a total schedular rating does not categorically render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008) (VA must consider a TDIU claim despite the existence of a schedular total rating and award special monthly compensation (SMC) under 38 U.S.C. § 1114(s) if VA finds a separate disability supports a TDIU independent of the disability with a 100 percent rating). However, here, the Veteran was also granted SMC in a July 2014 rating decision, effective November 7, 2013 based on his 100 percent schedular rating for lung cancer and the additional disability of metastatic cancer of the spine that was independently rated at 60 percent or more. Therefore, the decision in Bradley does not apply to the period from November 7, 2013 and the claim for a TDIU from that date is moot. However, the period prior to November 7, 2013 remains on appeal and the issue is characterized on the title page to reflect the period on appeal. The United States Court of Appeals for Veterans Claims (Court) has held that, although a Veteran claims service connection for a specified diagnosed disability, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that may reasonably be encompassed by several factors, including the Veteran’s description of the claim, the symptoms the Veteran describes, and the information the Veteran submits or that VA obtains in support of the claim. The Court reasoned that a Veteran does not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Here, although the Veteran filed his claim seeking service connection for PTSD specifically, a review of the record illustrates the Veteran was diagnosed with adjustment disorder with anxiety and depressed mood. The Board therefore finds that, pursuant to Clemons, the Veteran’s claim seeking service connection for PTSD is more accurately characterized as one for any acquired psychiatric disorder, to include adjustment disorder with anxiety and depressed mood and has recharacterized the issue accordingly. 23 Vet. App. at 5-6. As is discussed below, the Veteran does not have a diagnosis of PTSD for VA purposes; therefore, the Board has adjudicated that issue separately. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.159. Neither the appellant nor her attorney has raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”). Regarding the duty to assist, in the Veteran’s March 2014 notice of disagreement appealing his service connection for PTSD claim and entitlement to SMC, the Veteran contended that VA had not met its duty to assist because the Veteran did not undergo a VA examination for Housebound Status or Aid and Attendance. The Veteran underwent such examinations in February 2014 and April 2014. Furthermore, the Board is granting the benefit sought in full. Thus, appellate review of the appellant’s claim for SMC may proceed without prejudice to the appellant. Neither the appellant nor her attorney has raised any other issues with the duty to assist. Scott, 789 F.3d at 1381; Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence A claim for service connection for a lower back condition was originally denied in a June 1991 rating decision. The RO denied the claim on the basis that the Veteran’s lower back condition existed prior to service and was not permanently aggravated in service. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The appellant’s petition currently before the Board to reopen the Veteran’s claim for a lower back condition was received by the RO in June 2009. The RO granted the petition to reopen the claim and denied the claim on the merits in a November 2009 rating decision. Although the RO reopened the claim in the November 2009 rating decision, the Board must independently consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Here, the Board finds new and material evidence has been added to the appellant’s file since the June 1991 rating decision denying service connection for a lower back condition. A VA treatment provider opined in August 2011 that the Veteran’s lower back condition was directly related to the alleged fall in service. The Veteran attended a VA examination in June 2012, and the examination report reflects diagnoses of spondylolisthesis at L5-S1, degenerative disc disease at L1-L3, and spondylolysis at L5. Further, the June 2012 VA examiner opined that the Veteran’s lower back condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by the Veteran’s alleged fall in service. The VA examiner provided an addendum opinion in August 2012 where the examiner opined it was at least as likely as not that the Veterans lower back condition was caused by the Veteran’s spondylolisthesis, which existed prior to service. The examiner also opined that it was equally possible that the Veteran’s back pain was a result of his work as a mechanic only and not involving his spondylolisthesis condition. In addition, the examiner stated there was no evidence that the Veteran’s spondylolisthesis was aggravated beyond its natural progression by his work as a mechanic in service. The additional diagnoses of degenerative disc disease at L1-L3 and spondylolysis at L5 and the medical nexus opinions were not before adjudicators when the Veteran’s claim was last denied in June 1991, and the evidence is not cumulative or redundant of the evidence of record at the time of that decision. The evidence also relates to unestablished facts necessary to substantiate the claim for service connection a lower back condition and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Under 38 C.F.R. § 3.310, secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Acquired Psychiatric Disorder The appellant and her attorney contend the Veteran’s cancer caused the Veteran’s adjustment disorder. See Brief, dated September 10, 2018. A December 2013 rating decision granted service connection for lung cancer. A July 2014 rating decision awarded service connection for metastatic cancer of the spine and of the brain. A May 2014 VA examination report reflects the Veteran had a diagnosis of adjustment disorder with anxiety and depressed mood. Therefore, the first two elements of the claim seeking service connection for an acquired psychiatric disorder on a secondary basis are met. In addition, the May 2014 VA examiner opined that the Veteran’s adjustment disorder symptoms were likely related to the Veteran’s cancer. In support of the opinion, the examiner noted how the Veteran reported his medical problems affected his mood. The Board gives probative weight to the opinion of the May 2014 VA examiner as the opinion is consistent with the Veteran’s subjective reports and reflects consideration of the Veteran’s medical history. Thus, resolving any reasonable doubt in favor of the Veteran, the Board concludes that the requirements of 38 C.F.R. § 3.310 have been met; therefore, service connection for an acquired psychiatric disability as secondary to service-connected lung cancer and metastatic cancer of the spine and brain, is warranted. 2. PTSD The appellant and the appellant’s attorney contend the Veteran had PTSD that is related to his service. The question for the Board is whether the Veteran had PTSD that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a diagnosis of PTSD and did not have one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The May 2014 VA examiner evaluated the Veteran and determined that while the Veteran had subclinical symptoms resembling PTSD, there was not a trauma related chronic disability pattern. The VA examiner concluded the Veteran did not meet the criteria for PTSD under the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) or DSM-5. Further, there is no evidence the Veteran was treated for PTSD, and the medical records do not contain a diagnosis of PTSD. While the appellant and her attorney believe the Veteran had a diagnosis of PTSD, they are not competent to provide a diagnosis in this case. Psychiatric disorders are by their very nature complex disabilities that require specialized training to properly diagnose. The United States Court of Appeals for the Federal Circuit has also explicitly stated that PTSD is not capable of a lay diagnosis. Young v. McDonald, 766 F.3d 1348, 1352 (Fed. Cir. 2014) (“PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify”). Consequently, the Board gives more probative weight to the competent medical evidence. As such, without evidence of a diagnosis of PTSD as defined by VA regulations, a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App., 49, 53-56 (1990). As such, service connection for PTSD is denied. Special Monthly Compensation The appellant and her attorney seek special monthly compensation (SMC) as of October 2013 because the Veteran was in need of regular aid and attendance of another person due to his service-connected metastatic lung cancer. See Informal Hearing Presentation, dated September 10, 2018. Under 38 U.S.C. § 1114(l), SMC based on the need for aid and attendance is payable if, as the result of service-connected disability, the Veteran has suffered: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with visual acuity of 5/200 or less; (4) being permanently bedridden; or (5) being so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). To be deemed so helpless as to be in need of regular aid and attendance, there must be at least one of the following: (1) an inability to dress or undress or to keep ordinarily clean and presentable independently; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) an inability to feed independently through loss of coordination of upper extremities or through extreme weakness; (4) an inability to attend to the wants of nature; or (5) incapacity, either physical or mental, that requires care or assistance on a regular basis to protect from hazards or dangers incident in the daily environment. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996). Being bedridden also is a proper basis for such a determination. 38 C.F.R. § 3.352(a). The need for aid and attendance does not have to be constant. Id. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. The critical question to be determined is whether the Veteran’s service-connected metastatic lung cancer resulted in the need for regular aid and attendance of another person because of resultant helplessness due to physical impairment. The record here does not show, and the appellant does not allege, that the Veteran was blind or nearly blind or that he was a patient in a nursing home because of mental or physical incapacity. Likewise, the Veteran was not permanently bedridden as he travelled beyond his domicile for medical appointments and had limited mobility around the house. The appellant’s attorney asserted in his September 2018 Informal Hearing Presentation that the February 2014 VA examination shows the Veteran could be left alone for 2 hours or less per day, needed a wheelchair for walking distances over 200 feet, and could not lift more than 15 pounds. In addition, the attorney stated that the VA examiner noted the Veteran would need in or out patient skilled nursing assistance to sustain life, to help the Veteran complete tasks to support activities of daily living, and protect him from harm. Further, the appellant’s attorney stated the April 2014 VA examination shows the Veteran needed assistance in bathing and tending to other hygiene needs. Turning to the question of whether there was a factual need for aid and attendance, the Board observes that the Veteran met the criteria set forth in 38 C.F.R. § 3.352(a), and aid and attendance specified under 38 U.S.C. § 1114(l) is warranted. The February 2014 VA examination report reflects that the Veteran’s spouse prepared his meals and set out and reminded him to take his pills. The VA examiner noted the Veteran was able to bathe, eat, and dress himself. The VA examiner noted the Veteran needed a wheelchair for walking over 200 feet and was not able to lift over 15 pounds. The VA examiner noted the Veteran could be left alone for two hours or less per day. In addition, the VA examiner opined that without the assistance of the Veteran’s spouse or a community caregiver, the Veteran would have needed in or out patient skilled nursing assistance to sustain life, to help him complete tasks to support activities of daily living, and protect him from harm. The examiner stated that it was the Veteran’s service-connected lung cancer that caused his functional impairments rendering a need for aid and attendance. The Board acknowledges that the April 2014 VA examination report reflects the Veteran was able to feed himself and was not in nursing home care. However, the examination report also reflects that the Veteran needed assistance in bathing and tending to other hygiene needs in that the Veteran was very unsteady on his feet, so he needed help getting in and out of the tub. Further, the examination report reflects the Veteran was forgetful due to the radiation to his brain, so he was unable to manage his financial affairs and needed someone to administer his medications. Lastly, in support of the Veteran meeting the criteria set forth in 38 C.F.R. § 3.352(a) for aid and attendance specified under 38 U.S.C. § 1114(l), the Veteran was admitted on July 29, 2014 to the inpatient hospice unit for end of life care due to his lung cancer. The Board gives great probative weight to the February 2014 VA examiner’s opinion as the opinion is consistent with the record, she performed an evaluation of the Veteran, and the opinion provides a detailed report of the Veteran’s medical history. Taking all reports into account, the Board finds that the evidence is at least in equipoise as to whether the criteria for an award of special monthly compensation based on the need for the regular aid and attendance of another person have been met and that entitlement to special monthly compensation for this reason is warranted. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). REASONS FOR REMAND 1. The claims for service connection for a lower back condition, neck pain, and nerve damage of the right arm/hand are remanded. Initially, the Board notes that the Veteran consistently submitted statements beginning in April 1993 where the Veteran stated he suffered a fall in service in January or February of 1967. The Veteran stated he fell off a trailer and hit his back on another trailer. In addition, the Veteran stated he was immediately taken to a hospital at Camp Pendleton for treatment. A review of the record illustrates there are no hospital records of this incident in January or February 1967. The Veteran’s service treatment records (STRs) are in the file. However, the record does not reflect that all actions needed to obtain any in-service hospital record have been taken, including contacting the appellant to inform her of the unavailability of this hospitalization as part of the Veteran’s STRs, and to ask her to submit any copies the Veteran may have had of the hospitalization. M21-1, Part III, subpart iii, Ch. 1, § C. As such, remand is necessary to complete further development for the reported in-service hospitalization in accordance with pertinent VA procedures. In addition, as to the lower back condition claim, the April 1967 Medical Board Report reflects the Veteran had congenital grade one spondylolisthesis L5 on S1 based on X-ray findings and this was noted to be a congenital defect. However, aside from a diagnosis of spondylolisthesis at L5-S1, the June 2012 VA examination report also reflects diagnoses of degenerative disc disease at L1-L3 and spondylolysis at L5. Therefore, an additional VA opinion is necessary to determine if there was a superimposed disease or injury related to service on the Veteran’s congenital defect noted in service that created an additional lower back disability. See VAOPGCPREC 82-90 (July 18, 1990). Additionally, in August 2011, a VA physician opined that the Veteran’s injuries sustained in the 1967 fall were directly related to the Veteran’s neck and right arm conditions. However, the physician did not provide a rationale for this opinion. As such, it is inadequate for rating purposes, and a further opinion regarding these conditions is needed. 2. TDIU prior to November 7, 2013 Currently, the Veteran’s service-connected disabilities prior to November 7, 2013 did not meet the schedular criteria for the award of TDIU. However, the above decision awards service connection for a psychiatric disorder, and implementation of the Board’s decision will affect the ratings assigned. Additionally, in this instance, adjudication of the service connection claims may also affect whether the Veteran met the schedular criteria for TDIU prior to November 7, 2013. As such, the Board finds that the TDIU claim is inextricably intertwined with implementation of the award of service connection for an acquired psychiatric disorder and adjudication of the claims being remanded. Therefore, adjudication of the TDIU claim is deferred. The matters are REMANDED for the following actions: 1. Take any further action deemed necessary, in accordance with appropriate procedures, to obtain the Veteran’s complete service treatment records, including any records of any hospitalizations at Camp Pendleton in January and February 1967. All attempts to secure these records must be documented in the record, and the appellant must be notified of the unavailability of any records in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, obtain a VA opinion to determine the nature, extent, and etiology of the Veteran’s lower back disability. His electronic claims file, including a copy of this decision and remand, must be made available to the opinion provider for review. The VA clinician should provide an opinion on the following, while considering the record indicates the Veteran’s spondylolisthesis at L5-S1 is a congenital defect. Is it at least as likely as not (50 percent or greater probability) that there was a superimposed injury or disease during service that resulted in additional disability of the lower back, to include degenerative disc disease at L1-L3 and spondylolysis at L5? The clinician must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate. If the clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing the development requested in item 1, obtain a VA opinion to determine the nature, extent, and etiology of the Veteran’s neck disability and right arm/hand condition. His electronic claims file, including a copy of this decision and remand, must be made available to the opinion provider for review. The VA medical expert should provide an opinion on the following. A. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s neck disability, diagnosed as cervical spondylosis with degenerative joint disease at C4-C7, was related to service, including a fall therein? B. Is it at least as likely as not (50 percent or greater probability) that the Veteran had a right upper extremity disability that was related to service, including a fall therein? In answering this question, the VA medical expert should address the August 5, 2011 report from Dr. Sandra Willingmyre, a VA physician, that indicates the Veteran’s neck and arm conditions were related to the 1967 fall off the back of a truck. The clinician must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate. If the clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel