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Pond V. West


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DECISION ASSESSMENT DOCUMENT

DOCKET NO.: 97-1780 ACTIVITY: RATING

NAME: Pond v. West

ISSUE(S): Duty to assist - adequacy of examination;

Reasons and bases - weighing all medical evidence of record

ACTION BY COURT: Remand DECISION DATE: 4-21-99

FACTS: (This assessment will not cover the facts or analysis relating to VA’s failure to adjudicate the claim for an earlier effective date for service connection of a lumbosacral spine disorder.) The veteran had active service from August 1948 to May 1952. Service medical records show he was involved in a jeep accident in 1950 that resulted in lower back and left-leg pain. Service medical records did not report any treatment or complaints for a cervical spine injury. Discharge examination report showed that physical examination of his spine was normal. The veteran filed a statement in April 1993 which indicated that he had received a neck and back injury while in service in 1950. The veteran, a licensed chiropractor, stated that his neck and back pain was caused by C1 vertebrae subluxation. A 1995 x-ray examination of the veteran’s cervical spine showed "mild C-4 spondylosis. . . .[but] [n]o compression fractures, malalignments[,] or evidence of neural foraminal narrowing."

In February 1996, the regional office requested a VA medical opinion about any causal relationship between the veteran’s service connected lumbosacral disorder and his cervical spine impairment. During a February 1996 hearing, the hearing officer stated that he was going to request a medical opinion about whether the veteran’s cervical spine condition was caused by the in-service jeep accident. A letter from Keith E. Denton, D.C., stated that the veteran’s "vehicular injury caused cervical spinal trauma" which resulted in a cervical spine disorder. E.L. Crowder, D.C., wrote a letter indicating that the veteran had received chiropractic care of his cervical spine from 1953 to 1956, but he stated the treatment records had not been retained, and he could not substantiate the nature or severity of the veteran’s condition. The veteran submitted a statement in December1996 which indicated that he believed that his neck condition was related to the jeep accident because there existed, in his opinion, a correlation between persons diagnosed with cervical spondylosis and those who had previously suffered acceleration or deceleration injuries.

ANALYSIS: Inadequate reasons and bases: The Court found that the Board of Veterans Appeals’ (BVA) failure to address the opinion of the veteran, who is a medical professional and is therefore competent to provide medical nexus evidence, was error. The Court noted that this does not mean that the BVA cannot consider the personal interest the appellant-expert has in his own case, but the BVA is not free to ignore his opinion.

Duty to assist: The Court noted that twice VA requested medial examinations to discuss the etiology of the veteran’s cervical spine disorder, and in both instances the medical examiners completely ignored those instructions. Since the veteran had submitted a well-grounded claim for a cervical spine disability, he is entitled to a thorough and contemporaneous medical examination that discusses the etiology of his cervical condition.

The Court pointed out that remand rather than reversal was warranted in this case, since the evidence in the veteran’s favor, including the opinions given by the veteran himself and Dr. Denton, was not uncontroverted. The Court noted that Dr. Denton’s opinion was based on the veteran’s history that he had had neck problems since his discharge from service. The BVA also found that the medical records from 1950 to 1966, which contained no complaints or findings regarding the veteran’s cervical spine, were of more probative weight than the veteran’s account. For that reason, the BVA found that Dr. Denton’s opinion lacked probative value. The Court stated the BVA’s plausible determination regarding Dr. Denton’s opinion would not be disturbed by the Court.

Second, the Court noted that there was medical evidence of record which indicated that the veteran did not suffer a C1 subluxation at the time of his in-service accident. In fact, the first objective evidence of record that the veteran suffered from a cervical spine disorder is the 1995 x-ray report which found C4 spondylosis. That x-ray examination did not find misalignment or dislocation of the veteran’s C1 vertebrae.

The Court also pointed out that the veteran subsequently opined in December 1996 that he believed that his neck condition was related to the jeep accident because there existed, in his opinion, a correlation between persons diagnosed with cervical spondylosis and those who had previously suffered acceleration or deceleration injuries. The Court noted that the "appellant’s change in opinion regarding the etiology of his neck problem, itself creates sufficient doubt regarding the true nature of his neck condition such that the Court is compelled to remand this matter to the Board for further development and readjudication."

IMPACT ON DECISIONMAKERS: All decisionmakers should bear in mind that if a medical opinion is requested regarding the etiology of a disability, the medical examination report is inadequate if it does not give that opinion. All such reports should be returned to the medical professional to give the requested opinion. In addition, all evidence should be evaluated and weighed when the record is reviewed, including that of a claimant who is a medical professional and complete reasons should be given for any evidence which is not weighed favorably or found credible.

RECOMMENDED VBA ACTION(S): This is a good case for training on adequacy of examinations and on weighing evidence.

ACTION BY DIRECTOR, C&P SERVICE:

Approved?

_X_ ___ ______________/s/___________________ _5/17/99

Yes No Robert J. Epley Date

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