Citation Nr: 1807495 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-10 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for an upper back condition (also characterized as a cervical spine (neck) condition). REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Lewis, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from September 1968 to September 1970 and from September 1972 to December 1975. The Veteran is a recipient of the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal with device, the Rifle Sharpshooter Badge, and the Combat Action Ribbon. The Veteran also served in the U.S. Coast Guard Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran filed a Notice of Disagreement (NOD) in September 2012 and a Statement of the Case (SOC) was issued in January 2014. The Veteran filed his Substantive Appeal via a VA Form 9 in March 2014. Thus, the Veteran perfected a timely appeal of the issues. In July 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, as well as the Veteran's Virtual VA paperless claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). The Veteran served on active duty as a rifleman in the U.S. Marine Corps, including combat duty in the Republic of Vietnam. The Veteran contends that his currently diagnosed cervical spondylosis (upper back condition) is the result of his active duty service. Specifically, the Veteran has asserted that he was an M79 man or "blooper man" and that he continually carried heavy equipment and weapons including grenades for the M79 grenade launcher. He asserted that he carried over 100 pounds of weight on his back on a daily basis. It is the Veteran's contention that these duties caused neck and back pain that persists to this day. In his January 2011 Statement of the Claim, the Veteran reported that his physical therapist indicated to him that more than likely his current condition started in service and that his duties were a contributing factor in the development of the condition. The Veteran submitted letters from Dr. R.Z. that raised the possibility of a connection between the Veteran's service and his current upper back condition. In February 2011, Dr. R.Z. wrote that the Veteran had chronic neck pain with intermittent radiculopathy. He noted that the Veteran was a marine in Vietnam and carried over 100 pounds of required gear daily on patrol and in combat conditions for months during his deployment. He opined that it was possible that at least part of his current symptoms of chronic neck pain were related to his service as a Marine in Vietnam. In September 2012 Dr. R.Z. supplied an additional letter in which he essentially repeated the same opinion. In denying the Veteran's claim for service connection, the RO found that the February 2011 opinion provided by Dr. R.Z. was too equivocal or nonspecific to support a decision on the merits of the case. In particular, the assertion that the Veteran's neck pain could possibly be related to service was considered equivocal. Nonetheless, the RO found that the opinion of Dr. R.Z. was basis to afford the Veteran a VA examination. The Board agrees with the RO with regards to the opinions provided by Dr. R.Z. in the February 2011 and September 2012 letters. The Board notes that while the RO made the aforementioned finding in advance of the September 2012 letter, the two opinions are essentially the same in content, as Dr. R.Z. provided no new information or supporting rationale in the September 2012 letter. While the opinions raise the possibility of a nexus between the Veteran's neck pain and his service, they provide an insufficient supporting rationale to allow the Board to make a determination on service connection. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor's statement that a veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (noting that a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). The Veteran was afforded a VA examination in March 2012. The examiner reported a diagnosis of cervical spondylosis and noted that the Veteran had posterior neck pain which the Veteran attributed to his combat service carrying heavy gear and loads across his shoulders. The Veteran denied numbness, tingling, or weakness and had no history of invasive procedures or support devices. Imaging studies of the cervical spine were performed and documented arthritis. The examiner opined that the Veteran's cervical spondylosis was less likely than not (less than 50 percent probability) incurred in or caused by service. As rationale, the examiner stated that it had been over 40 years since the Veteran's marine combat experience and that there were no medical data points available over the intervening 40 years. He concluded that it was thus virtually medically impossible to link his current symptoms to something that occurred in the late 1960s with no intervening evidence. The Board finds that the Veteran engaged in combat with the enemy. Therefore, relevant to this case is the relaxed evidentiary standard of proof afforded combat Veterans under 38 U.S.C. § 1154 (b) (2012). See Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). That statutory provision directs that, when a disability is alleged to have been incurred or aggravated in combat, this element may be met through satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of a veteran's verified combat service, even when there is no official record of the incident. Id. Significantly, however, 38 U.S.C. § 1154 (b) does not establish a presumption of service connection; rather, it eases a combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be attributed. Id. The U.S. Court of Appeals for the Federal Circuit further clarified that the section 1154(b) presumption can be used not just to show the incurrence of an event or injury, but to show that a veteran incurred a permanent disability in service. Reeves v. Shinseki, 682 F.3d 988, 999-1000 (Fed. Cir. 2012). In such cases, it may be far easier for a veteran to establish that there was a nexus between military service and the severe disability with which he or she was afflicted after leaving the military. Id. Instead of attempting to establish that the injury suffered while in the military led to a disability following his service, a veteran "would only have had to show that the [] disability he incurred in service was a chronic condition that persisted in the years following his active duty." Id. Notwithstanding, the Federal Circuit explained that "[e]ven when the section 1154(b) combat presumption applies, a 'veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.'" Id. Thus, the reduced evidentiary burden only applies to the question of service incurrence, and not to the remaining service-connection elements of current disability and nexus. Here, the Veteran alleged that he carried over 100 pounds of weight, including ammunition, on his back on a daily basis while serving as a M79 man in service and that such duties are the cause of his persistent upper back pain. Thus, applying the above presumptions, he is presumed to have incurred an injury to his upper back in service unless there is clear evidence to the contrary. In light of this, an addendum opinion is necessary in order to ascertain whether the Veteran's currently diagnosed cervical spondylosis is related to the presumed in-service injury he suffered to his upper back, i.e. was this a chronic condition that persisted in the years following his active duty, pursuant to the combat presumptions he is afforded under 38 U.S.C. § 1154 and Reeves. Additionally, a review of the Veteran's service treatment records reveal a number of treatment records related to his time in the Coast Guard Reserves. These include a December 1979 Coast Guard enlistment examination and a May 1991 treatment note detailing a neck injury, in addition to several routine reports of medical examination in 1988, September 1992, and May 1998 for example. The March 2012 examiner asserted that there were no data points in the intervening years between the Veteran's combat service and the present upon which to base an opinion as to the etiology of the Veteran's current upper back condition. The observation by the Board that treatment records exist from that intervening period calls into question whether the examiner had the Veteran's complete medical history available to him before rendering an opinion. The Board finds that an addendum opinion is required which reflects consideration of all of the evidence of record. Lastly, the Board notes that the Veteran previously appeared at an informal conference before a Decision Review Officer in December 2012 in relation to this claim. The result of that conference was that the Veteran requested another VA examination regarding his upper back condition, in relation to his Coast Guard duties. The agreed upon actions were that the Veteran would submit a statement of his Coast Guard duties and a VA examination would then be requested. The Veteran did not submit such a statement and thus, a new examination was deemed to not be warranted. The Board finds that no further development on the part of VA in this regard is warranted. In light of the foregoing, the claim must be remanded for an addendum opinion that considers all of the evidence of record, taking into account the combat presumptions afforded to the Veteran, and proper consideration of the Veteran's lay statements regarding the onset and continuity of his upper back symptoms. 38 C.F.R. § 3.159 (c)(4); 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"). Accordingly, the case is REMANDED for the following action: 1. The AOJ should refer the claims file (to include both the VBMS and Legacy Virtual VA folder), and a copy of this Remand, to a physician (M.D.) for an addendum opinion to the March 2012 VA examination report. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner is requested to provide an opinion as to whether it is at least as likely not (50 percent or better probability) that any current upper back, neck, or cervical spine condition is causally related to service or any incident of service during the Veteran's active duty. In rendering this opinion, the examiner is asked to do the following: (1) assume as true that the Veteran sustained an injury to his upper back during his combat service, and assess whether such injury was a chronic condition that persisted in the years following his active duty; (2) address the likelihood that injuries such as those described by the Veteran caused his current upper back, neck, or cervical spine condition and indicate whether the pathology/disease process associated with the Veteran's upper back, neck, or cervical spine is consistent with the mechanism of injury claimed by the Veteran; and (3) consider/discuss the December 1979 Coast Guard enlistment examination, a May 1991 treatment note detailing a neck injury, and reports of medical examination in 1988, September 1992, and May 1998. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated, and the examiner must explain why the opinion sought cannot be offered without resort to mere speculation. 2. After undertaking the development above, the Veteran's claim should be readjudicated. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond before the case is returned to the Board for further review. 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 2014). _________________________________________________ TANYA SMITH 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).