Citation Nr: 1444056 Decision Date: 10/03/14 Archive Date: 10/10/14 DOCKET NO. 12-01 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an upper back and neck (cervical spine) disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from July 1998 to July 2001. This case is before the Board of Veterans' Appeals (Board) on appeal from March 2008 and April 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In March 2014, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. The VLJ who conducted the hearing noted the current appellate issue at the beginning of the hearing, and asked questions to clarify the appellant's contentions and treatment history. The appellant provided testimony in support his claims and expressed his contentions clearly. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Moreover, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. In addition to the paper claims file, there is an electronic record which includes a Virtual VA (VVA) electronic claims file and the Virtual Benefits Management System (VBMS). The documents in the VBMS and VVA files have been reviewed. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a cervical spine disability. Service connection for a lumbar spine disability was granted in a May 2002 rating decision, based on a finding that the Veteran's current lumbar spine disability is related to an in-service motor vehicle accident (MVA) in March 2001, and the Veteran maintains that his current neck and back pain is also attributable to that same MVA. The Veteran's service treatment records confirm that the Veteran suffered injuries in an MVA in March 2001; however, the March 2001 emergency room record and the Veteran's April 2001 separation examination only document complaints of low back pain and do not indicate any complaints or findings referable to the cervical spine. A review of the entire record reveals that the first reported complaints of neck and upper back pain come from an April 2003 private radiology report from Adams Radiology. Dr. Adams, a chiropractor, indicated that an AP full spine revealed cervical hypolordosis with anterior weight bearing and a right list, but cervical disc heights appeared well-maintained. An August 2006 VAMC primary care attending comprehensive assessment indicates the Veteran's reported neck pain for six months duration. The record also shows that the Veteran has sought treatment for neck and upper back pain continuously since August 2006. A June 2008 MRI of the cervical spine reveals foraminal stenosis and disc osteophyte complex and a December 2012 MRI reveals degenerative disc disease at C4/5 with slightly worsened degree of disc herniation compared to prior, and mild central canal and foraminal stenosis. At his video conference in March 2014, the Veteran testified that his neck was bothering him at the time of the March 2001 injury, and he thinks he mentioned it to the doctor at that time, but he was mainly focused on his mid and low back pain when he was being treated right after the accident. Although the Veteran believes his current neck pain is due to the in-service MVA in March 2001, the current record does not contain an adequate medical opinion, which is necessary to decide the claim. The medical evidence of record includes VA compensation and pension examinations with opinions in February 2008 and December 2011 The February 2008 examiner opined that the Veteran's current neck pain was less likely than not related to his chronic cervical strain because at the time of the MVA and thereafter for several years, neck pain was not in evidence, and it is unlikely that the remote MVA is now related to neck pain. Similarly, the December 2011 examiner opined that it is less likely than not that the Veteran's current neck condition noted in 2008 is related to the in-service MVA because the Veteran was not complaining of, or treated for, neck pain while in service and it is unlikely that neck pain manifesting 8 years after the in-service accident could be a residual of the accident. These examinations are not adequate because neither examiner acknowledges the cervical spine x-ray findings in 2003, nor do they consider the Veteran's lay assertions that he had neck pain at the time of the MVA. To support his assertions, the Veteran submitted several lay statements from friends, former co-workers and fellow servicemen who claim to have seen the Veteran with neck pain, and one fellow service member who reported that the Veteran complained of neck pain at the time of the MVA in March 2001. Also, the Veteran's primary care physician at the Atlanta VA Medical Center (VAMC), Dr. S, indicated in a January 2008 statement that, "Currently I am treating [the Veteran] for chronic neck and back pain which are service connected conditions." In May 2009, the Veteran presented to the VA with cervical radiculitis. In February 2011, Dr. G from the Hines VAMC in Illinois stated, "Seems all issue (sic) started after MVA when he was in the service. More likely than not that this is sequelae of injury." The assessment, however included only low back pain and not neck pain. Unfortunately, neither the January 2008 statement nor the February 2011 statement provide a rationale for the opinions linking the Veteran's current neck pain to the in-service MVA. These statements simply state that the Veteran's neck pain is a residual of his 2001 MVA, without consideration of any of the other evidence of record. It is not clear from these statements whether these doctors are aware that the Veteran's service treatment records do not show complaints of neck pain at the time of the March 2001 MVA. VA's duty to assist includes obtaining a VA examination and/or opinion when it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). Moreover, a medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the VA medical opinions do not take into account the Veteran's reported history in conjunction with the other evidence of record. Just because the Veteran did not report neck pain does not automatically mean that such pain did not exist. Furthermore, the statements provided by the Veteran's treating providers provide no rationale and do not appear to have considered the entire record. Accordingly, a new VA examination is necessary. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's updated VA clinical records related to cervical spine treatment and associate them with the claims folder or the electronic record. 2. With appropriate authorization from the Veteran, obtain and associate with the claims file or the electronic record, any private cervical spine treatment, including, but not limited to, records from Adams Radiology from July 2001 to present. If any identified records cannot be obtained, a notation to that effect should be inserted in the claims file. The Veteran and his representative are to be notified of any unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the above evidence is obtained, schedule the Veteran for an examination to be conducted by a physician skilled in the diagnosis and treatment of spine disabilities to address the etiology of the Veteran's cervical spine disability. The claims file and electronic record must be made available to the examiner for review before the examination; the examiner must indicate that the records were reviewed. In the examination report the examiner should discuss the relevant medical history. This should include discussion of the Veteran's 2001 injuries to the spine, the x-ray findings in 2003, the VA examinations of February 2008 and December 2011, the January 2008 statement by Dr. S, and the February 2011 statement from Dr. G, and the MRI findings in June 2008 and December 2012. Based on the evaluation of the Veteran and the review of the medical history, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran has any current cervical spine disability that is due to the March 2001 MVA or any other incident of service. This includes whether the Veteran's current neck disability had its onset during service and/or whether it is as likely as not that the Veteran's current degenerative arthritis of the cervical spine/intervertebral disc syndrome is a progression of the Veteran's reports that his neck pain began at the time of the March 2001 MVA. If the examiner opines that the Veteran's neck disability is not related to the in-service MVA, then the examiner should provide an opinion as to whether it is as likely as not that the Veteran's current cervical spine disability is aggravated by (made permanently worse) by the service-connected lumbar spine disability. A complete rationale should be given for all opinions and conclusions expressed. 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2013).