Citation Nr: 0914369 Decision Date: 04/17/09 Archive Date: 04/24/09 DOCKET NO. 05-40 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial evaluation greater than 10 percent disabling for degenerative disc disease of the cervical spine with herniated disc at C6-C7. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for gastric reflux disease. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Maureen A. Young, Counsel INTRODUCTION The Veteran served in the United States Army Reserves from December 1977 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2009, a video-conference hearing was held before the undersigned Acting Veterans Law Judge making this decision. See 38 U.S.C.A. § 7107(c) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In November 2004, the RO granted service connection for degenerative disc disease of the cervical spine with herniated disc at C6-C7 and assigned a 10 percent evaluation effective December 18, 2003. The Veteran contends that due to the symptoms she is currently experiencing her cervical spine disability warrants an initial evaluation greater than 10 percent. The evidence of record shows that in April 2000 the Veteran was taking the APFT on "drill weekend" and strained her neck. The record shows she received treatment for a neck disorder from 2000 to 2003. In March 2003 she underwent examination by the Army Medical Evaluation Board (MEB). The MEB determined that she failed to meet retention standards and recommended that she be presented to the Physical Evaluation Board, who recommended that she be medically discharged. The Veteran underwent a VA examination in September 2004. The Veteran maintains that her condition has worsened in severity since the 2004 examination, and as the level of disability is of foremost importance in a claim for an increase, it is necessary for a new, comprehensive VA examination to be afforded prior to the issuance of a decision on the merits by the RO. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran claims further that she has diabetes mellitus due to taking prednisone (described as medrol dose pack #1 in the medical records) as prescribed for her cervical spine disability. An Army Medical Center clinical treatment record dated May 2000 shows that the Veteran was seen for shoulder and neck pain and was prescribed medrol dose pack #1 to take everyday. The Veteran has proffered the medical opinion of I.G., M.D., who confirms that the Veteran is being treated for diabetes mellitus. In her opinion letter, Dr. I.G. states that the "[Veteran's] diabetes mellitus is a medical condition that started in the military. She [the Veteran] was diagnosed after she had her neck injury for which she was treated with a course of prednisone. Prednisone is known to cause elevated blood sugars and induce diabetes." While the private medical opinion by Dr. I.G. may have some probative value, the Board notes that it was not based on a review of the claims folder. When assessing the probative value of a medical opinion, access to the claims folder and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board finds this opinion to be too speculative to grant service connection for diabetes mellitus, but finds it sufficient to trigger VA's duty to obtain a medical opinion as to the etiology of the Veteran's disability. Further, the Veteran has claimed entitlement to service connection for gastric reflux disease. Service medical records show that in July 1985 the Veteran was seen for emergency care with complaints of epigastric pain for two days with vomiting. The examiner diagnosed possible gastritis and chronic gall bladder and peptic ulcer disease. The Veteran in her claim alleges that gastric reflux disease had its onset in May 1997. The Veteran is a reservist with more than twenty-five years of service, which includes periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA). The claims folder lacks the full service personnel record of the Veteran's Reserve duty. The Board finds that the full record is required in order to determine the Veteran's status in the Reserves at the time of any treatment for a disorder of the digestive system. In addition, the claims folder does not contain service medical records covering the full length of the Veteran's service in the Reserves (December 1977 to June 2003). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must provide the Veteran with notice of what is necessary to substantiate her claims for service connection considering the Veteran's status as a reservist. Specifically, the notice letter should request that the Veteran provide any evidence in her possession that pertains to her claims. The notice should also identify evidence that the VA will seek to obtain and that the Veteran is expected to provide. The Veteran should also be notified of the evidence necessary to establish an increase in disability rating and the effective date of award should her claim be granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The Veteran should be afforded the appropriate VA examination to determine the nature and severity of her service- connected cervical spine disability. The VA examination must address all objective neurologic abnormalities associated with the Veteran's degenerative disc disease of the cervical spine. In addition, the VA examination must take into consideration any additional functional impairment due to pain in accordance with 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995). The claims file must be made available to the examiner for review in connection with the examination. All indicated studies should be performed, and all findings reported in detail. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 3. Regarding the claim for service connection for diabetes mellitus, the Veteran should be scheduled for an examination by an appropriate specialist to determine the nature and etiology of diabetes mellitus. The claims folder should be made available to the examiner for review of the pertinent evidence. All indicated tests and studies should be undertaken. The examiner should elicit a complete history of any diabetes mellitus- related symptoms from the Veteran, and determine whether it is at least as likely as not (50 percent or greater probability) that diabetes mellitus was caused or increased by taking the drug prednisone (described in the Veteran's medical records as medrol dose pack #1). 4. Regarding the issue of service connection for gastric reflux disease, the RO/AMC should request all service personnel and treatment records to ensure that VA has complied with its duty to assist the Veteran under 38 C.F.R. § 3.159(c)(2). Consideration should be given to the March 2004 response from the National Personnel Records Center (NPRC) that states that the records were mailed. Although the RO received some records, it appears that the complete record has not been received. If no further records can be obtained after an exhaustive search, VA's efforts and any resolution determined must be fully documented for the record, and the Veteran should be notified in accordance with the provisions of 38 U.S.C.A. § 5103A(b) and 38 C.F.R. § 3.159(e). 5. Thereafter the Veteran should be scheduled for an examination by an appropriate specialist to determine the nature and etiology of her claimed gastric reflux disease. The claims folder should be made available to the examiner for review of the pertinent evidence. All indicated studies should be undertaken. The examiner should elicit a complete history of any digestive system-related symptoms from the Veteran, and answer the following: a. Does the Veteran currently have gastric reflux disease or other digestive system disorders? b. Is it at least as likely as not (50 percent or greater probability) that the current diagnosis, if any, is related to the in-service diagnosis of possible gastritis and chronic gall bladder, and peptic ulcer disease. 6. Thereafter, the RO/AMC shall re- adjudicate the Veteran's claims, considering all evidence not previously considered, and all evidence newly added to the claims folder. With regard to the cervical spine disorder, any objective neurologic abnormalities associated with the Veteran's degenerative disc disease of the cervical spine should be assigned a separate disability rating, if warranted, under an appropriate diagnostic code. In its re- adjudication of the claim for an initial evaluation greater than 10 percent disabling for degenerative disc disease of the cervical spine with herniated disc at C6-C7, the RO/AMC should consider the entire rating period involved in this claim, and should consider staged ratings if deemed appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. The case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2008).