Citation Nr: 22017923 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 11-09 343 DATE: March 27, 2022 REMANDED Entitlement to service connection for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran had active military service from November 1965 to November 1967, with subsequent service with the Army National Guard. The Veteran passed away in January of 2021; his surviving spouse has been substituted as the appellant for purposes of processing the appeal to completion. This matter comes before the Board of Veterans' Appeals (Board) from the November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran appeared at a December 2015 Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter has a lengthy procedural history. This matter was previously before the Board in February 2016 and February 2017 when it was remanded for additional development. Thereafter, the issue was returned to the Board and the Board denied entitlement to service connection for a cervical spine disability in November 2017. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In response to a February 2019 Joint Motion for Remand (JMR), the Court vacated and remanded the Veteran's claim to the Board. The Board thereafter denied this claim in July of 2019. The appellant (who had been substituted after the Veteran's death) appealed that denial to the Court, and in a September 2021 Memorandum Decision, the Court vacated and remanded the Veteran's claim. The case has now been returned to the Board for further appellate action. As an initial matter, the Board notes that the parties previously agreed in the February 2019 JMR that the Board erred when it failed to properly consider whether the Veteran experienced an in-service cervical spine injury at the time of his 1976 motor vehicle accident, and, if so, whether the Veteran experienced continuous cervical spine symptoms since his 1976 motor vehicle accident. This contention was thereafter specifically addressed in the Board's July 2019 decision that denied this claim. Notably, the Court stipulated in the September 2021 Memorandum Decision that in "finding no prejudicial error in the Board's finding of no continuous post-service symptoms, the Court also finds no error in the Board's denial of presumptive service connection." As such, the portions of the Board's July 2019 decision that addressed the possibility of service connection based on this theory of entitlement are incorporated herein by reference and will not be repeated in detail for the sake of brevity. The remaining question in this case is therefore whether service connection is warranted on a direct basis. Relevant to this, the Court indicated in the September 2021 Memorandum Decision that the Board erred because its "rejection of the veteran's lay reports of an in-service neck injury, arguing that it did not lay a proper foundation for relying on the absence of documented complaints of or treatment for a neck injury or symptoms. The Court agrees; in relying on the absence of a contemporaneous record of a neck injury, the Board did not address two pieces of material and potentially favorable evidence offering reasons as to why a purported neck injury was not documented. See Fountain v. McDonald, 27 Vet.App. 258, 272 (2015)." In that regard, it was asserted that "the Board did not discuss statements from the veteran and his fellow service member suggesting reasons why the purported neck injury was not recorded at the time. The fellow servicemember, who was in the accident with [the Veteran], said that the treatment after the accident 'consisted of a cursory visual check and administration of cleansing medication'" and "she was 'surprised that [the Veteran] was not given a more extensive medical evaluation but sent back to duty' as 'he was the more seriously injured of the crew involved in the vehicular accident.'" Further, "[the Veteran] said that he 'did not report the whiplash at the time because [he] had major pain to other parts of [his] body.'" It is noted that the Court also stated that "as for direct service connection, the appellant asserts that the 2017 VA medical opinion is inadequate because the examiner did not acknowledge or discuss the veteran's lay assertions of an in-service neck injury. However, the Board did not address whether the examiner overlooked the veteran's statements of a neck injury in providing an opinion, presumably because it had rejected his assertions. Because the case is being remanded so the Board can reassess the purported in-service neck injury, the Board can address the matter first." In that regard, the Board notes that an examiner cannot rely solely on the absence of medical records corroborating an in-service injury or disease as the basis for finding no nexus between a current disability and the Veteran's military service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where examiner did not comment on report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion). Given that the June 2017 VA opinion does not explicitly consider the assertions made by the Veteran, appellant, and above-mentioned fellow servicemember, the Board finds that a remand for an additional opinion is warranted prior to an additional decision being rendered. The matter is REMANDED for the following actions: 1. Obtain an addendum opinion from, if available, the examiner who provided the June 2017 VA opinion, or if unavailable, from a similarly situated competent medical examiner. The entire claims file, including a complete copy of this remand, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. The clinician should include discussion of the Veteran's documented medical history and assertions and is asked to opine: (Continued on the next page) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed cervical spine disability had its onset during active duty or is causally or etiologically related to any in-service event, disease, or injury. The clinician is specifically asked to address and reconcile to the extent possible in so opining: the above-detailed statements from the Veteran and his fellow service member (and reiterated by the appellant) suggesting reasons why the purported neck injury was not recorded at the time AND the more than three decades following the in-service accident without any reports of related symptomology. In so opining, the clinician is advised that the absence of medical records corroborating an in-service injury or disease cannot be the sole basis for finding no nexus between a current disability and the Veteran's military service. 2. Thereafter, readjudicate the claim on appeal. If the benefits sought remain denied, issue the appellant and her representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning this matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, Associate 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.