Citation Nr: 22009809 Decision Date: 02/18/22 Archive Date: 02/18/22 DOCKET NO. 17-41 332 DATE: February 18, 2022 REMANDED Entitlement to service connection for a neck disability is remanded. REASONS FOR REMAND The Veteran had active service from February 1973 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran provided testimony before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In June 2020 and November 2021, the Board remanded this matter for additional development, which has not been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a neck disability is remanded. In November 2021, the Board found that the VA medical opinion obtained in March 2021 was not adequate. The VA examiner focused only on the issue of chronicity of treatment since service and did not adequately address the issue of direct service connection. The examiner also did not consider the Veteran's lay reports of neck pain and symptoms, which he testified began after an in-service injury and persisted thereafter. The Board found that opinion was inadequate for rating purposes. Unfortunately, this continues to be the case. In November 2021, another VA examiner provided an opinion that the Veteran's claimed neck condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that "the records do not provide any documentation that the [V]eteran complained of, or was treated for cervical spine pain until 2013, which was more than 35 years later. Hence, the records do not provide any indication that there was chronicity of care..." The VA examiner's rationale, once again, is primarily based on the lack of treatment records or insufficient documentation recording the Veteran's complaints or diagnoses during service. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The VA opinion is in direct conflict with the holding in Buchanan v. Nicholson, 451 F.3d at 1336-37 (holding that although "the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible."); also see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a veteran with an examination in a service connection claim, the examination must be adequate); see also Stegall v. West, 11 Vet. App. 268 (1998). The VA examiner appears to discount the credibility of the Veteran's "self-reported" symptoms and neglected to consider the Veteran's statements concerning symptoms experienced in service and continuing after service. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Barr, 21 Vet. App. at 307 (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, the VA examiners could have addressed whether the Veteran's claimed symptoms were consistent with his complaints through the years, or whether the complaints were consistent with the current disorder. Instead, the examiner determined, incorrectly, that lack of a diagnosis in the treatment records are the only evidence which can provide the basis for an opinion concerning etiology. Given the deficiencies in the November 2021 VA examination report, the Board must remand this case again for a supplemental medical opinion. The matter is REMANDED for the following actions: 1. Obtain any updated VA treatment records dated from October 2021 to the present and associate these records with the claims file. All attempts to obtain these records must be documented in the claims file. 2. Forward the Veteran's claims file to a VA examiner with the appropriate expertise for a medical opinion to determine the etiology of his currently diagnosed neck disability. A VA examination should be scheduled, if necessary. After a thorough review of all evidence in the claims file, to include the Veteran's service treatment records, the post-service treatment records, and the Veteran's lay statements, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's neck disability was incurred in or otherwise related to the Veteran's military service, to include the reported in-service injury and symptoms of neck pain since service. The examiner is asked to elicit information from the Veteran regarding current symptoms and complaints through the years, and fully consider the Veteran's lay statements regarding the onset and symptoms of the claimed disability. The examiner should address whether any claimed symptoms in service are consistent with any current disorder. A complete rationale must be provided for any opinion stated, to include reference to current clinical findings and/or documents in the claims file. 3. After completing the above development, and any other development deemed necessary, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.