Citation Nr: 0202502 Decision Date: 03/18/02 Archive Date: 03/25/02 DOCKET NO. 94-33 056 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the residuals of a cervical spine injury. REPRESENTATION Appellant represented by: Michael E. Wildhaber, Attorney WITNESSES AT HEARINGS ON APPEAL Appellant and medical consultant ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Counsel INTRODUCTION The veteran served on active duty from March 1968 to September 1970. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a July 1993 rating decision that denied the benefits sought on appeal. In January 1997, a hearing before the undersigned Board Member was held in Washington, DC. A transcript of this hearing is of record. In April 1997, the Board issued a decision denying entitlement to service connection for residuals of a cervical spine injury. The veteran, in turn, appealed the denial to the United States Court of Veterans Appeals (known as the United States Appeals for Veterans Claims since March 1, 1999) (Court). In July 1998, counsel for the appellant and counsel for the Secretary of Veterans Affairs filed a joint motion for remand and to stay further proceedings (joint motion). In an August 1998 order, the Court granted the joint motion, vacated the Board's April 1997 decision, and remanded the case to Board for action in compliance with the motion. In February 1999, the Board remanded the issue on appeal to RO for additional development and adjudication. As the RO has continued the denial of the claim, the claims file has been returned to the Board for further appellate consideration. REMAND Following a review of the record, the Board finds that a second remand of this matter is warranted, although it will, regrettably, further delay an appellate decision on the matter on appeal. By way of historical background, the Board notes that a November 7, 1969 service medical record notes the veteran's complaints of back pain for one day with no history of trauma and findings of right paraspinal spasm and right scoliosis. Service medical records note that the veteran was involved in a helicopter accident on November 14, 1969. Subsequent service medical records note the veteran's complaints of low back and thoracic spine pain; x-rays and physical examination of the back were negative. The remainder of the veteran's service medical records, including the report of his September 1970 separation examination, reflects no complaints or findings of a cervical spine disorder. Following the veteran's service, a May 1971 VA examination report notes no complaints or findings of a cervical spine disorder; on examination, all motions of the neck were accomplished without difficulty. In a statement received by the RO in July 1974 (explaining why he did not report for an examination), the veteran indicated that he had recently been involved in a motorcycle accident. A December 1978 VA examination report notes the veteran's complaints of back and neck pain and stiffness; x-rays revealed cervical hypolordosis and cervical thoracic and lumbar scoliosis. Diagnoses was chronic myofascitis-paraspinal, spinal neuralgia of the thoracic-lumbar spines. By rating decision dated in October 1979, the RO granted service connection for a dorsal spine disorder. Subsequently, in 1992, the veteran submitted a claim for service connection for a cervical spine disorder. In a January 1995 statement, W. Alex Cox, D.C., of the Gonstead Clinic, indicated that he had compared recent x-rays of the veteran's cervical spine to those taken in January 1975, and concluded that the veteran's cervical spine disorder had "worsened dramatically" since 1975. Dr. Cox opined that the veteran's cervical spine disability was caused by his helicopter accident during service. In the February 1999 remand, the Board directed that the RO obtain and associate with the claims file the January 1975 x- rays from the Gonstead Clinic. The Board also directed the RO to schedule the veteran for a VA examination to determine the current nature and etiology of any current cervical spine disability. Following review of the claims file and examination of the veteran, the Board requested that the examiner offer an opinion as to the whether it is at least as likely as not that any diagnosed cervical spine disability was caused or is aggravated by either the veteran's active military service or his service-connected thoracic spine disability. The examiner was to provide the complete rationale for any conclusions or opinions expressed (to include reference to pertinent medical evidence of record). The Board notes that in a June 1999 letter, the RO requested from the Gonstead Clinic medical records from January 1975 to January 1995; no response was received. In February 2000, the RO notified the veteran that no response had been received from the Gonstead Clinic, and requested that the veteran attempt to obtain the requested medical evidence directly. In a letter received by the RO in March 2000, the veteran stated that he had received no treatment from the Gonstead Clinic since 1975, when the injuries to his spine were identified. He also noted, however, that copies of the January 1975 x-rays taken in connection with treatment at that facility should already be in his claims file. A review of the record suggests that, at some time in the past, the veteran apparently submitted copies of reports associated with the January 1975 x-rays; unfortunately, however, no x-rays or any report(s) associated with such x- rays are currently in the veteran's claims file. The veteran's January 1997 hearing testimony indicates that the veteran may have maintained possession of the original January 1975 x-rays (and/or any report(s) associated therewith). As this evidence is obviously pertinent to the issue on appeal, the RO should, again, attempt to obtain it directly from either the Gonstead Clinic or directly from the veteran, as appropriate. Additionally, pursuant to the February 1999 remand directive, the veteran underwent VA examination in June 1999. The Board finds, however, that the medical opinion obtained does not provide sufficient medical information to resolve the issue on appeal. In his examination report, the examiner noted findings of a healed, postoperative odontoid fracture of the cervical spine and degenerative disk disease of the cervical spine. The examiner opined that it was not likely that the present findings in the neck were related to the veteran's military service or his service-connected thoracic spine disability. In explaining the basis for his conclusion, the examiner noted that the veteran's service medical records were negative for complaints or findings of a cervical spine disability. He also noted that the veteran was involved in a motorcycle accident in 1974, and in an automobile accident in 1994. However, it is unclear whether the examiner had an opportunity to review the x-rays or any report(s) associated with the January 1975 x-rays. Moreover, while the examiner indicated, in an April 2000 addendum to his prior examination report, that consideration of evidence received after his June 1999 examination of the veteran did not alter his prior opinion, neither the original examination report nor the addendum specifically addresses Dr. Cox's January 1995 opinion that the veteran's cervical spine disorder was related to his helicopter accident during service (based upon a comparison of 1975 and 1994 x-rays). The Board further notes that the private medical opinion the veteran's representative subsequently submitted in May 2001 similarly does not reflect consideration of all the pertinent evidence of record. In his May 2001 report, Craig N. Bash, M.D., identified the evidence that provided the basis for his opinion that the veteran's current cervical spine disorder was caused by a helicopter crash during service. While Dr. Bash specifically addresses private medical records of treatment following a 1994 automobile accident, his report includes no specific reference to either the veteran's assertion that he was involved in a 1974 motorcycle accident or to his review of the January 1975 x-rays and/or associated report(s). Under these circumstances, the Board finds that the record still does not contain a well-reasoned, comprehensive medical opinion clearly based upon consideration of all pertinent medical evidence and events reflected in the record, to specifically include the veteran's in-service helicopter crash and associated service medical records, the veteran's reference to a 1974 motorcycle accident and x-rays subsequently taken in January 1975, and the veteran's 1994 automobile accident and all medical records associated therewith. Such an opinion is needed to fully and fairly resolve the issue on appeal. Accordingly, after obtaining and associating with the record the outstanding pertinent medical evidence referred to above, the RO should arrange for the veteran to undergo further medical examination. As obtaining further medical opinion is vital to full and fair consideration of the issue on appeal, the appellant is hereby advised that failure to report to the scheduled VA examination, without good cause, may well result in a denial of the claim. See 38 C.F.R. § 3.655 (2001). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the appellant fails to report to the scheduled examination, the RO should obtain and associate with the record any notice(s) of the examination sent to the appellant. As a final point, the Board notes that the above-requested development is consistent with duties imposed by the Veterans Claims Assistance Act of 2000 (enacted during the pendency of this appeal), which among other things, redefines VA's duties to notify and assist a claimant (see 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107 (West Supp. 2001) and the recently promulgated regulations implementing the Act, see 66 Fed. Reg. 45620, 45630-2 (Aug. 29, 2001)). However, the fact that specific actions have been identified herein does not relieve the RO of the responsibility to ensure that the Act has fully been complied with. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the Act. Accordingly, this case is hereby REMANDED to the RO for the following: 1. The RO should inform the veteran that copies of report(s) interpreting the January 1975 x-rays from Gonstead Clinic are not currently associated with his claims file, and undertake all necessary action to obtain and associate the actual x-rays and/or any report(s) interpreting the x-rays directly from the veteran or the Gonstead Clinic, as appropriate. If contact with the clinic elicits a response that the records are unavailable, or if the search for such records otherwise yields negative results, that fact should clearly be documented in the claims file. 2. After associating with the claims file any and all evidence received pursuant to the above-requested development, the RO should arrange for the veteran to undergo VA orthopedic examination of his cervical spine disorder, if possible, by a physician who has not previously examined the veteran. The entire claims file, along with a complete copy of this REMAND, must be provided to and reviewed by the physician designated to examine the veteran. All necessary tests and studies, to include x-rays, should be accomplished, and all clinical findings should be reported in detail. After examination of the veteran, review of his pertinent medical history and assertions, and consideration of sound medical principles, the physician should render an opinion, with respect to each diagnosed cervical spine disorder as to whether it is, at least as likely as not, that the disorder (1) is the result of injury or disease incurred or aggravated during active military service, or, if not (2) was caused or is aggravated by the veteran's service-connected thoracic (dorsal) spine disability. If aggravation by the service-connected disability is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. It is imperative that the examiner's opinion reflects consideration and specific discussion of all pertinent medical evidence and events reflected in the record, to specifically include the veteran's in-service helicopter crash and associated service medical records, the veteran's reference to a 1974 motorcycle accident and x-rays subsequently taken in January 1975, and the veteran's 1994 automobile accident and all medical records associated therewith. If the examiner concludes that the record presents no basis for service connection for a cervical spine disorder on either a direct or secondary basis, the examiner must specifically address all contrary (i.e., supportive) medical opinions of record, to specifically include the opinions of Drs. Cox and Brash. All examination findings, along with the complete rationale for any conclusions or opinions expressed should be set forth in a typewritten report. . 3. To help avoid future remand, the RO must ensure that all requested development has been completed (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. The RO must also review the claims file and ensure that all notification and development required by the Veterans Claims Assistance Act of 2000 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (codified, as amended, at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West Supp. 2001)), and the pertinent final regulations implementing the Act (to be promulgated, as amended, at 38 C.F.R. §§ 3.102 and 3.159), are fully satisfied. 5. After completion of the foregoing requested development, and any other indicated development and/or notification action, the RO should readjudicate the claim for service connection for residuals of a cervical spine injury in light of all pertinent evidence and legal authority. If the veteran fails to report for any scheduled examination(s), the RO should apply the provisions of 38 C.F.R. § 3.655, as appropriate. The RO must provide adequate reasons and bases for its determinations, citing to all governing legal authority and precedent, and addressing all issues and concerns that were noted in the REMAND. 6. If the benefit sought on appeal continues to be denied, the veteran and his attorney must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response thereto before his claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the requested action should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. JACQUELINE E. MONROE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), 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) (2001).