Citation Nr: 21021759 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-16 034 DATE: April 13, 2021 REMANDED Entitlement to service connection for a spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1996 to June 2000. In November 2018, the Veteran testified at a video conference hearing before a Veterans Law Judge of the Board. A transcript of that hearing is of record. However, the Veterans Law Judge who presided over that November 2018 hearing is no longer employed by the Board, since having retired. The Veteran accordingly was duly apprised of this and offered the opportunity to have another hearing before a different Veterans Law Judge that would ultimately decide the appeal, but the Veteran responded she did not want another hearing. In a subsequent April 2019 decision, the Board denied this claim, the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In granting a February 2020 Joint Motion for Remand (JMR), the CAVC vacated the Board’s decision denying this claim and remanded it back to the Board for further proceedings consistent with agreement in the JMR. In granting the JMR, the Court determined the Board had erred in failing to provide adequate reasons and bases regarding relevant evidence. More specifically, the Court found that the Board had determined the Veteran had not been diagnosed with arthritis or any other chronic condition for purposes of statutory presumptions, but that her VA treatment records reflect that she had received diagnoses of cervical spondylosis, degenerative joint disease, and arthritis of the spine, which the Board therefore should have considered in its decision. Therefore, to try and get some clarification concerning this – including both in terms of diagnoses and whether any is attributable to the Veteran’s military service, the Board, in turn, remanded this claim back to the RO in September 2020 to obtain treatment records from the Dallas VA Medical Center and to afford her another VA compensation examination. To this end, the Veteran underwent this needed VA examination in December 2020; however, the Board finds it inadequate for adjudication purposes. And, in this circumstance, it is incumbent on the Board to correct the failings in that examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA examiner opined that the Veteran’s spine disability is less likely than not related to her service because her cervical spondylosis, degenerative joint disease, and arthritis of the cervical spine were diagnosed in 2015, some 15 years after her separation from service. Therefore, the VA examiner appears to have formulated this unfavorable medical nexus opinion solely based on the lapse of time between the conclusion of the Veteran’s service in 2000 and her diagnosis of arthritis in 2015. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Mense v. Derwinski, 1 Vet. App. 354 (1991). But, in doing so, the VA examiner failed to provide an underlying reasoning or rationale as to why this is significant to not relating this disability back to her service, especially when one considers that service connection is not precluded simply because the disability now being claimed was not initially diagnosed until after service. See 38 C.F.R. § 3.303(d). Moreover, the VA examiner at least seemingly out of hand discounted the Veteran’s reports of continuity of symptoms since her service, also without providing any reason or justification. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service treatment records (STRs) to provide a negative opinion). See also the Veteran’s January 2015 Notice of Disagreement (NOD) making this assertion.   Most of the probative value of an opinion comes from its underlying reasoning or rationale, and this opinion unfortunately does not provide the required level of explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). More comment consequently is needed. Accordingly, this claim is again REMANDED for the following still additional development and consideration: Obtain a supplemental opinion from a VA clinician to further assist in determining the nature and etiology of the Veteran’s spine disability. A copy of this remand and all relevant medical and other records must be made available to the examiner. The examiner must review the pertinent evidence, including the Veteran’s lay assertions and documented history of complaints. To ensure sufficient responses are received, the current Disability Benefits Questionnaire (DBQ) format must be utilized. If another examination is deemed necessary to respond to the request, one should be scheduled. Based on a review of the results of the Veteran’s past physical examinations, including her VA examinations in June 2014 and more recently in December 2020, her statements regarding the development and treatment of her disability – including as discussed in her January 2015 NOD, and all other relevant evidence in the claims file, the examiner is asked to answer the following questions: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s spine disability began during her service from June 1996 to June 2000; or, since involving arthritis, initially manifested within a year of her discharge, so by June 2001; or is otherwise related to or the result of a disease, an event, or an injury in service? In responding, it is essential the examiner provide explanatory rationale, regardless of whether favorable or unfavorable to the claim, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. *To avoid a recurrence of the deficiencies in the prior June 2014 and December 2020 VA examinations, this additional examiner is advised that the Veteran is competent to report her symptoms (e.g., ongoing pain, etc.) and medical and other history, and these reports must be specifically acknowledged and considered in formulating any opinions. *The mere absence of evidence of treatment for this claimed disability in the Veteran’s STRs cannot, alone, be sufficient reason or rationale for disassociating this condition from her service, although this may be a consideration (among others) if there is explanation of why it is reasonable to have expectation of documented complaints or treatment of this disability in the STRs or prior to the apparent initial diagnosis in 2015. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.