Citation Nr: 1616578 Decision Date: 04/26/16 Archive Date: 05/04/16 DOCKET NO. 07-13 214A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1970, with service in the Republic of Vietnam from January 1969 to January 1970. His decorations include the Vietnam Cross of Gallantry with Palm. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied the claims of entitlement to service connection for a cervical spine disability, a lumbar spine disability, and posttraumatic stress disorder (PTSD). In March 2010, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ), however, he elected to limit his hearing testimony to that concerning his claim of entitlement to service connection for PTSD, a claim no longer on appeal. In January 2011, the Board granted service connection for PTSD and remanded the issues of entitlement to service connection for cervical and lumbar spine disabilities. By an October 2015 rating decision, the RO granted service connection for a lumbar spine disability. The remaining issue, entitlement to service connection for a cervical spine disability, has now been returned to the Board for further consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board, at the time of the January 2011 remand, directed the AOJ to conduct additional development. It appears that not all of the development directed by the Board was completed. By way of background, the Veteran contends that his current cervical spine disability is causally related to injuries sustained during service in the Republic of Vietnam while jumping and diving into the ground to avoid rocket-fire. The Veteran has reported receiving in-service treatment for his neck and back, including being placed in traction while stationed at Camp Evans. A review of the Veteran's available service treatment records reveals that, at the time of his entrance examination in September 1967, the Veteran reported a history of recurrent back pain; however, on examination, he was found to have a normal spine, with the examiner specifically noting that the Veteran had no tenderness or spasm, and that spine x-rays taken at that time were normal. These records also reveal that the Veteran received treatment for his spine on numerous occasions during service, including treatment for chronic lumbar spine strain in November 1967, back pain in March 1968, recurrent lumbar back pain in August 1969, and sciatica in August 1969. Moreover, these records show that the Veteran was placed on a temporary profile due to his back pain in August 1969. Although the Veteran was noted to have a normal spine examination upon separation from service, at the time of his separation examination in August 1970, he did report a history of back trouble. The Veteran's post-service private and VA treatment records indicate that he has been undergoing treatment for neck pain since approximately 1994, and has been diagnosed with cervical degenerative disc disease (DDD); hypertrophic spurring at C4-5 and C7-T1; mild disc space narrowing at C6-7 and C7-T1; mild bulging discs at C2-3 and C4-5 with central spinal stenosis; nerve impingement of the cervical spine; and cervical radiculopathy. The AMC, in February 2011, requested from the National Personnel Records Center (NPRC), the Veteran's service treatment records, specifically, his clinical records for inpatient treatment at Camp Evans from January 1969 to December 1969, and at the Kimbrough Army Hospital from January 1968 to December 1968 and from January 1970 to October 1970. It does not appear that the NPRC responded to that request or that the AOJ forwarded a second request to the NPRC or another facility or otherwise attempted to obtain such records. On remand, the AOJ should complete the actions required in order to obtain the Veteran's cited service treatment records. The AMC, in February 2011, provided the Veteran a number of VA Forms 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, in order to obtain his records related to his state disability benefits claim from the state of California. The Veteran filed numerous authorization forms in March 2011; however, in a June 2015 letter, the AMC informed the Veteran that his authorization forms had expired and he needed to submit new forms. It is possible that the Veteran did not understand the need for additional authorization forms, as he had already completed such. By a September 2011 rating decision, the Veteran has been deemed incompetent and has a fiduciary that may or may not be assisting him in responding to inquires or directives from the AOJ. On remand, the AOJ should provide the Veteran a final opportunity to submit updated authorization forms to allow VA to obtain his records related to his state disability benefits claim from the state of California. The AMC, in October 2015, added the Veteran's VA treatment records from the VA Medical Center (VAMC) in Palo Alto, California, dated from March 2005 to July 2009. In its January 2011 remand, the Board sought such records dated since September 2002. It is unclear to the Board if records from the Palo Alto, California VAMC dated prior to March 2005 and after July 2009 do not exist or are otherwise unavailable, and if so, such a determination should be made for the record. On remand, the AOJ should seek from the VAMC in Palo Alto, California, the Veteran's treatment records dated prior to March 2005 and after July 2009, as well as his updated VA treatment records from the VAMC in Fresno, California, dated from October 2015 to the present. The AMC, in February 2011, requested that the Veteran identify the source of any relevant outstanding private treatment records. In a March 2011 statement, the Veteran responded that records of treatment with his private physician, Dr. Bonner, and his chiropractor, Dr. Holecek, had been destroyed and that he sought treatment in 1971 at a VA facility to complain of back pain and was told that there was nothing wrong with him. Of record are VA dental treatment records from a facility in California dated in 1971. On remand, the AOJ should provide the Veteran a final opportunity to name the VA facility at which he was treated in 1971. The Veteran underwent VA examination, most recently, in September 2015 and the examiner offered a negative etiological opinion. On remand, the AOJ should forward the claims file to the examiner who provided the September 2015 opinion, after conducting the development detailed herein, and seek an addendum opinion that considers any additional evidence. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the VA facility at which he was treated in 1971 and complained of back pain. All communications regarding obtaining these records should be documented in the claims file. If a negative response is received from any source of records, the Veteran must be duly notified and provided an opportunity to submit such records. 2. Obtain the Veteran's complete service treatment records, including clinical records, from the NPRC and/or any other appropriate source, specifically, those records requested by the AOJ in February 2011, records reflecting inpatient treatment at Camp Evans from January 1969 to December 1969, and at the Kimbrough Army Hospital from January 1968 to December 1968 and from January 1970 to October 1970. All communications regarding obtaining these records should be documented in the claims file. If a negative response is received from any source of records, the Veteran must be duly notified and provided an opportunity to submit such records. 3. Obtain and associate with the claims file all relevant records related to the Veteran's claim for disability benefits from the state of California. Provide the Veteran any required VA Forms 21-4142, Authorization and Consent to Release Information to the VA. All communications regarding obtaining these records should be documented in the claims file. If a negative response is received from any source of records, the Veteran must be duly notified and provided an opportunity to submit such records. 4. Obtain and associate with the Veteran's claims file his VA treatment records maintained by the VA Medical Center (VAMC) in Palo Alto, California, dated prior to March 2005 and since July 2009, as well as those 1971 VA treatment records, if completely identified by the Veteran, and his VA treatment records dated since October 2015 from the VAMC in Fresno, California. All communications regarding obtaining these records should be documented in the claims file. If a negative response is received from any source of records, the Veteran must be duly notified and provided an opportunity to submit such records. 5. Then, forward the Veteran's claims file to the VA examiner who submitted the September 2015 etiological opinion as to the Veteran's cervical spine disability, or a suitable substitute. If any party determines that additional examination of the Veteran is required, so schedule the Veteran. The examiner should review any additional evidence added to the claims file as a result of the development conducted and submit an addendum opinion that reflects review of such evidence. The examiner was originally asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that any current cervical spine disability had its clinical onset during active service or is related to any in-service disease, event, or injury. In doing so, the examiner should specifically acknowledge and consider the Veteran's in-service treatment for chronic lumbar spine strain in November 1967, back pain in March 1968, recurrent lumbar back pain in August 1969, and sciatica in August 1969; and his reports (which for purposes of providing this opinion, should be accepted as credible) regarding an in-service injury from jumping and diving into the ground to avoid the firing of rockets, in-service traction treatment in 1969, and a continuity of symptomatology (i.e., pain) since service. The claims file, including a copy of this remand, should be made available to the examiner for review in conjunction with the opinion/examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the examiner cannot answer the above questions without resorting to mere speculation, the examiners should state why this is so. 6. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim, considering any additional evidence added to the record. If the action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 2015). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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) (2015).