Citation Nr: 21069438
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 17-57 503
DATE: November 18, 2021

REMANDED

Entitlement to service connection for a neck disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from August 1979 to August 1983.

The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge in July 2021.  A transcript of that hearing is associated with the claims file.

Entitlement to service connection for a neck disorder is remanded.

The Veteran underwent a VA examination in May 2014 to determine the etiology of his neck disorder.  The examiner diagnosed spinal stenosis, cervical myelopathy, and spondylosis and opined that it was less likely than not that the Veteran's neck disorder was caused or incurred as a result of his active duty service.  The examiner acknowledged the in-service evidence of neck pain, but explained that the opinion was based upon the "long period of time between the initial injury to active symptoms . . . ."

The U.S. Court of Appeals for Veterans Claims (Court) has held that a medical opinion based solely on the absence of documentation in the treatment records or that fails to take into account lay statements is inadequate.  See Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006) (VA examiner's opinion inadequate that relied on the absence of contemporaneous medical evidence); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007).  Because the May 2014 VA opinion was based on a lack of evidence of treatment for a neck disorder for many years after service discharge and failed to adequately consider the Veteran's competent lay statements and testimony explaining that he has experienced chronic neck pain since active duty service, a new VA examination is required.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment reports.

2. Ask the Veteran to complete a VA Form 21-4142 for any identified private treatment reports. Make two requests for the authorized records from the identified facilities, unless it is clear after the first request that a second request would be futile.

3. Thereafter, provide the Veteran with a new VA examination by an appropriate physician to determine the etiology of his chronic neck pain.  The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report.  All pertinent symptomatology and findings must be reported in detail.  All indicated tests and studies must be accomplished.  

Based upon a complete review of the evidence of record, the VA examiner must state whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's neck disorder was caused or incurred as a result of his active duty service.

A complete rationale for all opinions must be provided.  The examiner must consider and discuss all pertinent evidence in the claims file, to include the Veteran's lay statements and testimony regarding in-service and post-service symptomatology.  Specifically, the examiner is asked to address the Veteran's lay statements that he experienced symptoms of chronic neck pain during active duty service and continuously since service discharge.  Also, the examiner is advised that the Veteran is competent to report observable symptomatology.

 

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Katz, Counsel

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.