Citation Nr: 21001601 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 12-07 796 DATE: January 11, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. REASONS FOR REMAND The Veteran had active duty service from October 1965 to September 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018 and in August 2019, the Board remanded the Veteran’s claim. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. Entitlement to service connection for a neck disability is remanded. The Veteran contends that he injured his neck on active duty and was treated at Cherry Point Hospital immediately after. See VA 21-4138 Statement In Support of Claim (February 2010). He stated that he received treatment for his neck after discharge, but the records of that treatment are unavailable, because the chiropractor who treated him closed his practice. Id. He detailed the incident in 1966, when he used two bunkbeds as grabbing bars, beds went down, and he hit his neck; the next morning, he noticed pain with side movements and went to get an x-ray done. See C&P Exam (June 2018). He reported being told to treat his neck with heat, and that he has had pain on and off since. Id. Although a VA cervical spine examination was provided in November 2019, the Board finds that the RO has not substantially complied with the Board’s prior remand order. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, the matter is remanded again. Initially, the Board finds that the Veteran has a current neck disability and that his service treatment records (STRs) reflect an October 1966 note that he fell the day before resulting in stiff neck during active duty. See STR-Medical (October 1969). He was assessed with sprained neck muscles. Id. First, an August 2019 Board decision found that the June 2018 VA examination was inadequate and remanded claim for a new medical examination addressing the etiology of the Veteran’s current neck disability to include whether it is at least as likely as not is related to an in-service injury, event, or disease, to include the documented in-service fall and resultant cervical sprain in October 1966. In an earlier remand in February 2018, the Board also determined that the December 2011 VA examination was inadequate. However, the November 2019 VA examination obtained does not substantially comply with the Board’s prior remand instructions. The opinion essentially relied on the absence of documented evidence, in other words records showing a chronic neck condition while in the service or within one year of exiting service; and it does not answer the question of whether the Veteran’s current neck problems are related to service, to include the October 1966 in-service fall and resultant cervical sprain. Notably, an absence of “chronicity of care” is not a valid basis for a negative medical conclusion given that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d). Second, the November 2019 VA medical examination is inadequate to decide the appeal, because it is predicated on the absence of “objective” data or information without any consideration of the Veteran’s reports of in-service injuries. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board specifically requested that consideration is given to the Veteran’s lay statements regarding his symptoms of neck pain during and after service. See Stegall, supra. The Board again notes that Veteran is competent to attest to observable symptomatology and, if rejected or found unpersuasive in view of other facts, this must be explained. Here, the November 2019 opinion does not reflect any consideration of the lay statements to specifically including his continued assertions of chronic neck pain since the 1965 injury, including during service and after service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible). Along the same lines, the opinion does not identify or explain the relevance or significance of any history, clinical findings, etc., relied upon in reaching the conclusion, including private treatment records with reports of neck pain assessed as degenerative joint disease in March 2006 and pain in August 2009, as well as a May 2010 diagnosis of neck osteoarthritis. See VA 21-4142 Authorization for Release of Information (April 2010). Third, the accuracy of the examiner’s review of the Veteran’s record appears questionable as it cites to an October 1965 in-service fall, while the STRs document an October 1966 fall. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). In view of the record and the Veteran’s statements, the Board believes that a remand is again necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Aside from the inadequacy of the available VA examinations, the Board finds that the Veteran’s STRs may be incomplete and the Veteran’s record does not contain his service personnel records (SPRs). In that regard, the Veteran’s STRs contain his enlistment and separation physicals as well as few reports of treatment during service. The Veteran has alleged that his STRs are incomplete, including treatment at Cherry Hill Hospital for his neck disability. See VA 21-4138 Statement In Support of Claim (June 2010). The Board recognizes that the RO has attempted to acquire the Veteran’s STRs, including specifically for a June 1969 hospitalization at Cherry Point Hospital. See VA Memo (November 1969). A November 1969 response provided that the Veteran was not treated at Cherry Point from February to August 1969. However, the Veteran alleged treatment at Cherry Point after his documented October 1966 injury, not in June 1969. No search has been conducted for records from Cherry Hill Hospital for the relevant time period. Thus, it remains unclear whether the Veteran’s STRs are complete as no thorough search has been conducted. Therefore, the Board finds that remand is necessary for the RO to attempt to obtain the relevant STRs and SPRs. Lastly, no formal finding of unavailability of such records has been made. Additionally, as remand is necessitated as indicated above, the Board finds that the Veteran should be afforded another opportunity to assist in the development of his claim. The record shows that there may be outstanding relevant medical evidence. In this regard the Veteran’s record shows that he has been receiving private treatment for his neck disability. Subsequent to the Board’s August 2019 remand, a development letter requesting the Veteran to either provide any additional private treatment records or complete VA Form 21-4142 for release of those private treatment record was mailed to his old address. See Subsequent Development Letter (July 2020). It is unclear whether the Veteran has been properly notified of his opportunity to submit additional private treatment records given that the notice letter was not mailed to the latest and updated address of record. The Veteran is reminded that that VA’s duty to assist in the development of claims is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). He should cooperate and assist as requested in the development of his appeal. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from August 2020 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for all not VA medical providers seen for symptoms involving neck (cervical spine) since service discharge. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Obtain complete STRs and SPRs pertaining to the Veteran’s active duty service from October 1965 to September 1969 through official sources and potential repositories of such records to include, but not limited to, the Headquarters of the United States Marine Corps, National Personnel Records Center and the Records Management Center. All attempts to obtain such records should be clearly documented in the claim file. If it is determined that such records do not exist or are otherwise unavailable, a formal finding of unavailability should be made and associated with the claim file. 4. If any records cannot be obtained, provide the Veteran with a proper notice that meets the requirements under 38 U.S.C. § 5103(A)(b)(2) and 38 C.F.R. § 3.159(e), and includes (a) the identity of specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claim, and (d) that the Veteran is ultimately responsible for providing the evidence. Such notice should also inform the Veteran of alternative sources of evidence that may be submitted in place of his missing service records. 5. Schedule the Veteran for an examination(s) by an appropriate clinician(s) to determine the nature and etiology of the Veteran’s current neck disability (diagnosed as degenerative arthritis on the November 2019 VA examination report. Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. Then, the examiner is asked to address the following: (a.) Whether the documented in-service findings and/or the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop. Explain. (b.) Whether the Veteran has a current neck disability that is at least as likely as not (i) began in service or (ii) is caused by or the result of an in-service injury, event, or disease, to include the October 1966 documented in-service fall and resultant cervical sprain. If the examiner opines that any in-service neck complaints fully resolved, the examiner must specify the evidence relied upon in formulating the opinion. (c.) If another etiology is the more likely cause of the Veteran’s neck disability, then identify that etiology and fully explain. The conclusions must be supported with data (e.g. history, findings, etc.) along with a reasoned medical explanation connecting the two. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). Further, it should, at a minimum, reflect consideration of (1) STRs including October 1966 documented in-service fall and resultant cervical sprain; (2) the Veteran’s reports of pain since the incident during and after service; and (3) the representative’s argument that “Previous neck injuries appear to increase the risk of cervical spondylosis or osteoarthritis. https://www.mayoclinic.org/diseases-conditions/cervical-spondylosis/symptoms-causes/syc-20370787” 6. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.