Citation Nr: 22011686 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 18-44 512 DATE: March 1, 2022 REMANDED Entitlement to service connection for a cervical strain is remanded. REASONS AND BASES FOR REMAND The Veteran served on active duty in the United States Army from July 1972 to April 1974 and from April 1974 to September 1974. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Veteran originally submitted a claim for service connection for a cervical strain in October 1983, which was denied in a January 1984 rating decision on the basis that service treatment records (STRs) were negative for any findings regarding his cervical spine. The Veteran was notified of the decision and he did not appeal it. Since that rating decision, however, additional service treatment records have been associated with the file in 2018 and again in 2021, including STR that reflect neck pain. Under the laws, if at any time after VA issues a decision on a claim additional relevant official service department records are received that existed and had not been associated with the claims file when VA first decided the claim, the claim will be reconsidered notwithstanding the provisions of 38 C.F.R. § 3.156 (a). See 38 C.F.R. § 3.156 (c). Accordingly, the threshold step of whether new and material evidence had been submitted is not for application in this case. Entitlement to service connection for a cervical strain. The Veteran contends that he injured his cervical strain during active service. In May 2018, the Veteran underwent a VA examination for his neck disability. The VA examiner diagnosed the Veteran with a cervical strain. The VA examiner opined that that the Veteran's cervical strain was less likely than not related to service. The VA examiner provided the following rationale: "during service, condition was acute only. There is no evidence of chronicity of care. A nexus has not been established. The claims file is silent for a neck condition. In November of 1973 he complained of stiff neck." When VA undertakes to provide a VA examination or obtain a VA medical opinion, it must ensure that the examination or opinion is adequate, see Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007), which in this context requires that an examination report sufficiently inform the Board of a medical expert's judgment on a medical question, rely upon accurate factual premises, including the Veteran's lay statements regarding symptomatology, and present a fully articulated, sound rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, reliance on the absence of evidence in the record contravenes applicable VA regulations and precedential case law allowing the award of direct service connection where supported by sufficient evidence. See Dalton v. Nicholson, 21 Vet. App .23, 39 (2007); 38 C.F.R. §3.303(d). The Board finds that the VA examiner's opinion provided inadequate rationale and is not a sufficient basis on which to adjudicate the claim for service connection for a cervical strain. Significantly, the Board notes that at the May 2018 VA examination, the Veteran also stated that his neck pain began during active service in 1973 and has continued ever since. However, the May 2018 VA examiner did not discuss any of the Veteran's lay statements of onset of pain or continuous complaints of pain as part of their rationale for providing a negative medical nexus opinion. Although the VA examiner acknowledged neck pain during service, they did not discuss if that neck pain is related to the Veteran's current neck pain that the Veteran has asserted has continued since service. Significantly, the VA examiner concluded that that Veteran didn't have any evidence of chronicity of care. While the Board is not at this time making a finding that as to the competency/credibility of his lay statements as to continuity of symptoms, the examiner did not discuss them and an incomplete rationale was provided. The Court explained in Smith, that because "medical opinions can inform credibility findings, the duty to assist may require the Board to obtain a medical examination before assessing the credibility of lay evidence." See Smith v. Wilkie, 32 Vet. App. 332 (2020). Given such, applying the Court's rulings in Smith, the Board finds that without consideration of the Veteran's lay statements, this VA medical opinion of record, is inadequate. As the opinion did not address all of the evidence and did not provide a complete rationale, a further addendum opinion is necessary. See 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"). As such, a remand is necessary to ensure fair and appropriate adjudication of the Veteran's claims consistent with VA's duties to assist. The matter is REMANDED for the following action: Obtain an addendum medical opinion to determine the nature and etiology of the Veterans cervical strain. The Veteran should receive another in-person VA examination if the clinician deems it to be necessary. The examiner must provide a complete written history, including all statements and reports made by the Veteran as to his military service. *The Board's reference to evidence in this context should not be construed as a determination of its credibility. See Smith v. Wilkie, 32 Vet. App. 332 (2020). The VA examiner should offer the following opinion: Is it at least as likely as not (nearly equal) that the Veteran's cervical strain disability had onset in service or is otherwise related to his active service, to include the September 1972 obstacle tower injury and June 1973 motor vehicle accident. When providing the rationale, the examiner MUST discuss and comment on the July 2021 Board hearing testimony concerning: The Veteran's neck injury in September 1972 during basic training when another servicemember fell off an obstacle tower and injured the Veteran's neck. See September 1972 STR (noting a service medical record indicates neck pain in September 1972); and The Veteran's neck injury in June 1973 when he was stationed at Fort Hood and had a motor vehicle accident where he was thrown out of his jeep and hit the back of his head. See June 1973 STR (noting a spine x-ray was administered due to the accident which was negative); see also November 1973 STR (noting a medical report of the Veteran complaining of stiff neck pain). A thorough rationale should be provided for all opinions expressed, including discussion of the facts of this case and any medical studies or literature relied upon. The examiner should fully articulate a sound reasoning for all conclusions made. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. (Continued on the next page) The entire claims file, including a copy of this REMAND, must be reviewed. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.