**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

[No]{.smallcaps}. 97-1780

[Lloyd C. Pond, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Togo D. West, Jr.,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided April 21, 1999 )

*Charlene S. Jones and Barton F. Stichman* were on the brief for the
appellant.

*Leigh A. Bradley*, General Counsel; *Ron Garvin*, Assistant General
Counsel; *Jacqueline M. Sims*, Acting Deputy Assistant General Counsel;
and *Darryl A. Joe* were on the brief for the appellee.

Before NEBEKER, *Chief Judge*, and HOLDAWAY and GREENE, *Judges*.

HOLDAWAY, *Judge*: The appellant, Lloyd C. Pond, appeals the June 1997
decision of the Board of Veterans\' Appeals (Board or BVA) which
determined that he was not entitled to service connection for a cervical
spine disorder. The appellant argues that the decision of the Board
should be reversed because the uncontroverted evidence of record
supports service connection of the spinal disorder. The appellant also
alleges that the Board failed to adjudicate his claim for an earlier
effective date for his lumbosacral spine disorder and that that issue
should be remanded to the Board for adjudication. The Secretary concedes
that the Board failed to adjudicate the effective date issue. The
Secretary also concedes that the cervical spine disorder claim should be
remanded because the Board failed to adequately develop the record.
However, the Secretary contends that there is a plausible basis in the
record for the Board\'s decision that the cervical spine injury was not
service connected, and, therefore, reversal of the Board\'s decision is
not appropriate in this matter. The Court has jurisdiction of the case
under 38 U.S.C. § 7252(a). For the following reasons, the Court will
vacate the decision of the Board and remand the matter for
readjudication.

**I. FACTS**

The appellant served on active duty in the U.S. Army from August 1948 to
May 1952. His service medical records document that he was involved in a
jeep accident in 1950 that resulted in lower back and left‑leg pain.
X-ray examinations of the appellant\'s lumbosacral spine were normal. He
was diagnosed with a chronic, strained left sacroiliac joint. He was
also treated in early 1952 for continuing pain in his lower back that
radiated down his left leg. X-ray examinations showed minimal irregular
narrowing and haziness in the left sacroiliac joint. The appellant\'s
service medical records do not report any treatment or complaints for a
cervical spine injury. His discharge examination reported that physical
examination of his spine was normal.

Upon discharge from military service, he applied for VA disability
compensation for asthma and a back injury. The appellant submitted a
certificate from a physician stating that he had a ruptured
intervertebral disc in the lumbar region. X‑ray examination of his
lumbosacral spine revealed minimal scoliosis and questionable narrowing
of the lumbosacral joint. In 1954, he was granted service connection for
lumbosacral strain.

A neurological examination in 1958 revealed that the appellant had
continued lower back pain along with weakness and paresthesia in his
left leg. He was diagnosed with sciatic neuropathy. In 1963, the
appellant was afforded a VA neurological examination, wherein he
complained of continued lower back pain that radiated to his left leg.
The examiner reported that sciatic neuropathy was not found. An April
1966 VA examination for compensation purposes found that the
appellant\'s musculoskeletal system was normal.

The appellant filed an application for an increased disability rating
for his service‑connected lumbosacral disability in April 1993. At that
time, he also submitted a statement indicating that he had received a
*neck* and back injury while in service in 1950. He also stated the
following:

> Early examinations and treatment indicate injury to the cervical and
> thoracic spine as well as the lumbo\[\]sacral.
>
> My primary symptoms are neck and back pain with associated occipital
> headaches . . . which seems to be increased when the atlas and
> cervical spine are subluxated. The C‑1 subluxation results in
> concomitant tractionization, reticular formation involvement,
> over‑facilitation and spastic contracture of the spinal muscle
> structures, to include lumbar and pelvic distortion in the frontal and
> transverse planes. This spinal distortion results in lumbo\[\]sacral
> and sciatic pain with associated intermittent paresthesia in the
> Achilles area of the left leg.

He reported that he had received treatment from Drs. Gordon Miller and
Ralph Gregory. He also reported that he was a licensed chiropractor. The
VA regional office (VARO) received chiropractic treatment records from
Keith E. Denton, D.C., for the period of April 1967 to March 1987. The
records contained no diagnoses or x-rays. Dr. Denton stated that he had
treated that appellant for recurring spinal injuries, and that the
original injury had occurred in an accident in the 1950\'s while the
appellant was in service. The appellant also submitted medical articles
relating to atlas subluxation complex. In July 1994, the VARO denied the
appellant\'s claim for service connection of his cervical spine disorder
because there was no evidence of the disorder in his service medical
records or early VA medical records. The appellant filed a timely Notice
of Disagreement stating that he believed that the VARO decision denying
his claim relating to cervical spine impairment was erroneous because he
had not been afforded a VA examination. A February 1995 VA spine
examination found that the appellant had osteoarthritis of the lumbar
spine with root impingement on the left. The examiner opined that the
appellant\'s back condition was directly connected to his jeep accident
in service. The examiner did not discuss the appellant\'s cervical
condition. However, an x-ray examination of the appellant\'s cervical
spine revealed \"mild C‑4 spondylosis. . . . \[but\] \[n\]o compression
fractures, malalignments\[,\] or evidence for neural foraminal
narrowing.\" X‑ray evidence of his thoracic spine also showed mild
spondylosis, but no malalignment. The VARO confirmed its denial of the
veteran\'s claim for service connection of his cervical spine condition.
In September 1995, the appellant filed a Substantive Appeal. The
appellant also submitted medical articles relating to etiology and
treatment of degenerative disc disease. A November 1985 VA progress note
stated that he had a history of degenerative disc and joint disease of
the cervical and lumbar spines.

In February 1996, the VARO requested a VA medical opinion about any
causal relationship between the appellant\'s service-connected
lumbosacral disorder and his cervical spine impairment. At a February
1996 VA personal hearing, the appellant testified that he had traumatic
degenerative changes in his neck that, in his opinion, had resulted from
the 1950 jeep accident. The hearing officer stated that he was going to
request a medical opinion about whether the appellant\'s cervical spine
was caused by the in‑service jeep accident. The appellant made the point
that Drs. Miller and Denton had treated his neck with corrective care
along with his back. The hearing officer asked the appellant to obtain
any clinical documents from Dr. Denton relating to his neck. The
appellant explained that the records from Dr. Denton showed measurements
from x-rays that had provided the adjustment angles for his cervical
spine.

At a March 1996 VA examination, the examiner discussed the appellant\'s
lumbar spine condition and opined that it was related to the
appellant\'s in‑service back injury. However, the examiner did not
mention the appellant\'s cervical spine problems. The hearing officer
granted the appellant\'s claim for service connection of degenerative
changes in his lumbar spine, effective July 6, 1994. The hearing officer
also denied his claim for service connection of his cervical spine. The
VARO received a letter from Dr. Denton stating:

> Dr. Pond\'s vehicular injury caused cervical spinal trauma, resulting
> in unilateral spastic contracture to the deep extensor or anti gravity
> musculature of the entire spinal column. Inherent in this injury is
> pelvic distortion or tipping, leg length inequality, and spinal
> imbalance.
>
> Specifically, this patient received an injury that caused the first
> cervical vertebrae to misalign, or displace to the right of the
> occipital condyles of the skull. Resulting from this component of the
> misalignment is a stretching or tractionization of the reticular
> formation of the brain stem. This mechanism is thought to be a result
> of either direct mechanical tractionization, or dentate ligament
> stretching.
>
> . . . This misalignment of the first cervical vertebrae, caused a loss
> of function of the inhibitatory control, resulting in increased tonus,
> or unilateral spastic contracture of the deep extensor musculature.
>
> . . . .
>
> *Treatment*: Manual correction (adjustment) of the misalignment
> factors or pattern of injury of the cervical spine.

Joe E. Brewer, who served on the police force with the veteran in Pampa,
Texas, sent the VARO a letter indicating that he recalled that the
appellant had had daily pain from his injury that he had received while
in service. He also stated that the veteran had begun to receive
treatment from Dr. Miller at that time. E. L. Crowder, D.C., wrote a
letter indicating that the appellant had received chiropractic care of
his cervical spine from 1953 to 1956 while a student at Palmer College
of Chiropractic. However, Dr. Crowder stated that the treatment records
had not been retained and he could not substantiate the nature or
severity of the appellant\'s condition.

In April 1996, the appellant filed a Notice of Disagreement reiterating
his belief that he had sustained a cervical injury in service. He also
requested retroactive payments beginning in April 1993 for the award of
service connection of degenerative changes in his lumbar spine. The VARO
issued a decision in August 1996 confirming its denial of the
appellant\'s claim for service connection of the cervical spine. The
VARO did not discuss the appellant\'s claim for an earlier effective
date for his award of service connection for degenerative changes in his
lumbar spine.

In December 1996, the appellant submitted the following statement:

> I believe the whiplash, acceleration/\[d\]eceleration was not
> addressed at the time of the back injury. I\'ve had problems with the
> \[n\]eck, cervical spine, and lumbosacral spine since the injury.
>
> The high incidence of cervical osteoarthritis and spondylosis observed
> in those presenting with symptoms years after
> acceleration/deceleration injuries suggests a very strong causal
> relationship, especially when the disease is localized to one or two
> levels.
>
> I believe the cervical spine and neck condition is related to the same
> injury received to the lumbosacral spine area. It should be rated as
> service connected.

The Board found that the evidence of record was against service
connection for the appellant\'s cervical spine condition. First, the
Board found that the service and postservice medical records from 1950
to 1966 did not reference any complaints or treatment relating to a
cervical spine injury. The Board found that those contemporary medical
records were more probative than the appellant\'s testimony that he had
experienced neck pain after his jeep accident. Second, the BVA rejected
Dr. Denton\'s medical opinion that the appellant\'s cervical condition
had been caused by the in‑service jeep accident because Dr. Denton\'s
opinion was (1) based solely on the veteran\'s history and (2) not
supported by diagnostic or clinical findings. Third, the Board found
that the statement by Dr. Cowder that the appellant had received
chiropractic treatment to his cervical spine from 1953 to 1954 was not
probative of the existence of a cervical disorder because the treatment
records were not available and the doctor did not remember the reason
for the treatment. The Board also noted that the appellant had indicated
that the treatment was provided for his lower back symptomatology.
Lastly, the Board found that the first objective evidence of a cervical
spine disorder was a February 1995 x-ray examination report that showed
spondylosis of the C4 vertebrae. The Board noted that the objective
evidence did not indicate that the cervical injury was caused by the
jeep accident in service.

**II. ANALYSIS**

A. Cervical Spine Disability

Service connection is a factual determination by the Board that the
Court reviews for clear error. *See Rose v. West*, 11 Vet.App. 169, 171
(1998). \'\"A finding of fact is clearly erroneous when although there
is evidence to support it, the reviewing court on the entire evidence is
left with a definite and firm conviction that a mistake has been
committed.\"\' *Gilbert v. Derwinski*, 1 Vet.App. 49, 52 (1990) (quoting
*United States v. United States Gypsum Co.*, 333 U.S. 364, 395 (1948)).
\"\[T\]his Court is not permitted to substitute its judgment for that of
the BVA on issues of material fact; if there is a \'plausible\' basis in
the record for the factual determinations of the BVA, . . . \[the
Court\] cannot overturn them.\" *Id.* at 53. \"The appellant bears the
burden before this Court of establishing that the fact‑finding below was
clearly erroneous.\" *Zink v. Brown*, 10 Vet.App. 258, 259 (1997).

Additionally, the BVA\'s decision must include \"a written statement of
the Board\'s findings and conclusions, and the reasons or bases for
those findings and conclusions, on all material issues of fact and law
presented on the record.\" 38 U.S.C. § 7104(d)(1).

> \[T\]he Board must identify those findings it deems crucial to its
> decision and account for the evidence which it finds to be persuasive
> or unpersuasive. These decisions must contain clear analysis and
> succinct but complete explanations. A bare conclusory statement,
> without both supporting analysis and explanation, is neither helpful
> to the veteran, nor \"clear enough to permit effective judicial
> review\", nor in compliance with statutory requirements.

*Gilbert*, 1 Vet.App. at 57. The BVA cannot reject evidence favorable to
the claimant without providing adequate reasons and bases for its
decision. *See Meyer v. Brown*, 9 Vet.App. 425, 433 (1996).

\"Moreover, the Board may not rely on its own unsubstantiated medical
conclusions to reject expert medical evidence in the record; rather, the
Board may reject a claimant\'s medical evidence only on the basis of
other independent medical evidence.\" *Flash v. Brown*, 8 Vet.App. 332,
339 (1995); *see also Thurber v. Brown*, 5 Vet.App. 119, 122 (1993);
*Colvin v. Derwinski*, 1 Vet.App. 171, 175 (1991). However, a medical
opinion based on a factual predicate that has been rejected by the Board
lacks probative value. *See Reonal v. Brown*, 5 Vet.App. 458, 460-61
(1993) (holding that a medical opinion based on a factual predicate that
had been rejected by the Board has no probative value and is not,
therefore, material evidence that warrants a reopening of the
appellant\'s claim)*.*

In this matter, the Board failed to discuss the medical opinion of the
appellant himself. The Board rejected the appellant\'s testimony that he
had had neck pain since his discharge from service because his testimony
was not supported by the contemporaneous objective medical reports.
However, the Board did not discuss the appellant\'s opinions that his
current neck condition was caused by the in‑service jeep accident. The
appellant is a medical professional, and he is therefore competent to
provide medical nexus evidence. *See Grottveit v. Brown*, 5 Vet.App. 91,
93 (1993); *Espiritu v. Derwinski*, 2 Vet.App. 492, 494 (1992). This
does not mean that the Board cannot consider the personal interest the
appellant-expert has in his own case, but the Board is not free to
ignore his opinion. *See Cartright v. Derwinski*, 2 Vet.App. 24, 25
(1991) (holding that while interest in the outcome of a proceeding \"may
affect the credibility of testimony, it does not affect competency to
testify\") (citing *Dixie Ohio Express Co. v. Lowery*, 115 F.2d 56, 57
(5th Cir. 1940)); *see also Hatlestad v. Derwinski*, 1 Vet.App. 164, 170
(1991). Therefore, the Board\'s failure to discuss his opinion was
error. *See Cartright* and *Gilbert,* both *supra*.

Additionally, the Secretary breached his duty to assist the appellant in
developing the pertinent facts in this case. \"\[F\]ulfillment of the
statutory duty to assist . . . includes the conduct of a thorough and
contemporaneous medical examination, one which takes into account the
records of prior medical treatment, so that the evaluation of the
claimed disability will be a fully informed one.\" *Green v. Derwinski*,
1 Vet.App. 121, 124 (1991). Twice VA requested medical examinations to
discuss the etiology of the appellant\'s cervical spine disorder. In
both instances the medical examiners completely ignored those
instructions. The appellant has submitted a well‑grounded claim for a
cervical spine disability, and he is entitled to a thorough and
contemporaneous medical examination that discusses the etiology of his
cervical condition. *See id*.

Where the Board fails to provide an adequate statement of reasons and
bases or fails to insure proper development of the claim, the
appropriate remedy is to remand the matter to the Board for further
proceedings. *See Zink, supra*; *Hicks v. Brown*, 8 Vet.App. 417, 422
(1995). However, the appellant contends that the evidence in favor of
his claim is uncontroverted, including the medical opinions given by
himself and Dr. Denton, and that the decision of the Board should
therefore be reversed, not remanded. *See James v. Brown*, 7 Vet.App.
495, 496-97 (1995) (holding that the Board\'s decision warranted
reversal because the Board not only failed to articulate reasons and
bases for its factual and legal conclusions and failed to fulfill its
duty to assist, but there was no evidence contradicting the veteran\'s
claim); *Hicks, supra* (holding that where there is absolutely no
plausible basis in the record for the Board\'s decision and the decision
is clearly erroneous in light of the uncontroverted evidence of record,
the appropriate remedy is to reverse the decision of the Board).

Generally, to prove service connection, a claimant must submit (1)
medical evidence of a current disability, (2) medical evidence, or in
certain circumstances lay testimony, of in‑service incurrence or
aggravation of an injury or disease, and (3) medical evidence of a nexus
between the current disability and the in‑service disease or injury.
*See Caluza v. Brown*, 7 Vet.App. 498 (1995). The evidence of record
shows that in 1995, after x-ray examination, the appellant was diagnosed
with C4 spondylosis. That diagnosis is undisputed and establishes that
the appellant has a current cervical spine disability. It is also
undisputed that the appellant was involved in a jeep accident while in
service. However, the Court finds that the record on appeal is
inadequate to permit the Court to reverse the decision of the Board and
to find that the appellant\'s neck condition is service connected. *See
Zink* and *Hicks*, both *supra*.

The appellant originally submitted a 1993 opinion that his neck and back
pain was caused by C1 vertebrae subluxation. Subluxation means a partial
dislocation. *See* [Webster\'s Medical Desk Dictionary]{.smallcaps} 685
(1986). In February 1996, Dr. Denton also opined that the in-service
jeep accident had \"caused the first cervical vertebrae to misalign, or
displace to the right of the occipital condyles of the skull.\" Those
opinions are not uncontroverted evidence of a medical nexus sufficient
to warrant reversal of the Board\'s decision in this case. First, as the
Board found, the opinion of Dr. Denton is based on the appellant\'s
history that he had had neck problems since his discharge from service.
The Board found the medical records from 1950 to 1966, which contained
no complaints or findings regarding the appellant\'s cervical spine, to
be of more probative weight than the appellant\'s account. For that
reason, the Board found that Dr. Denton\'s opinion lacked probative
value. The Board\'s determination regarding the weight of Dr. Denton\'s
opinion has a plausible basis in the record and will not be disturbed by
this Court. *See Reonal, supra*.

Second, there is also medical evidence of record which indicates that
the appellant did not suffer a C1 subluxation at the time of his
in‑service accident. His separation examination found that his spine was
normal. An April 1966 VA examination also found the appellant\'s
musculoskeletal system to be normal. In fact, the first objective
evidence of record that the appellant suffered from a cervical spine
disorder is the 1995 x-ray report finding C4 spondylosis. That x-ray
examination did not find misalignment or dislocation of the appellant\'s
C1 vertebrae. Therefore, the evidence of record is not conclusive that
the appellant suffered a C1 subluxation as a result of the in‑service
jeep accident.

The appellant 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. However, 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 reajudication. The Court is not left with a definite and
firm conviction that the Board was clearly erroneous in its fact finding
in this case. *See Zink, supra*. Therefore, the appropriate remedy is to
remand the matter to the Board for further development and
readjudication. *See id*.

B. Earlier Effective Date

The Board is required to adjudicate, or if appropriate remand for
further development, all issues reasonably raised from a liberal reading
of the appellant\'s substantive appeal, including all documents and oral
testimony in the record prior to the Board\'s decision. *See Brannon
v. West*, 12 Vet.App. 32, 34 (1998); *Solomon v. Brown*, 6 Vet.App. 396,
402 (1994); *EF v. Derwinski*, 1 Vet.App. 324, 326 (1991). In this
matter, in his Notice of Disagreement, the appellant expressed his
belief that he was entitled to an earlier effective date for service
connection of the degenerative changes in his lumbar spine. Therefore,
the Board erred in failing to adjudication the effective date issue, and
the issue will be remanded to the Board for further proceedings. *See
Solomon*, 6 Vet.App. at 403.

**III. CONCLUSION**

The June 1997 decision of the Board is VACATED and the matter REMANDED
for further proceedings in accordance with this decision. On remand, the
appellant will be free to submit additional evidence and argument in
support of his claims for service connection of his cervical spine
disorder and for an earlier effective date for service connection of his
lumbosacral disability. *See Quarles v. Derwinski*, 3 Vet.App. 129, 141
(1992). Furthermore, a remand by this Court, or by the Board, confers on
the appellant a right to VA compliance with such remand instructions,
and the Secretary has a duty to insure proper compliance. *See Stegall
v. West*, 11 Vet.App. 268, 271 (1998).