Citation Nr: 0834321 Decision Date: 10/06/08 Archive Date: 10/16/08 DOCKET NO. 03-11 814A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD F. Yankey, Associate Counsel INTRODUCTION The veteran served on active duty from January 1967 to September 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. The veteran's appeal was previously before the Board in July 2005, at which time the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. The veteran presented testimony at a Board Hearing chaired by the undersigned Acting Veterans Law Judge in April 2008. A transcript of the hearing is associated with the veteran's claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran contends that his currently demonstrated cervical spine disability stems from an in-service injury to his left shoulder and neck which he sustained while serving in Vietnam in 1969. Service medical records show that in June 1968, the veteran sought outpatient treatment for stiffness in his neck and was diagnosed at that time with myositis. He was given medication and told to return as needed. His spine was evaluated as normal at the time of his separation examination in August 1970. The post-service medical evidence shows that a current neck disability has been diagnosed. Spinal examinations conducted in September 1973, December 1974, December 1979, October 1983, July 1987, August 1991 and September 1996 were all normal. However, a private radiological study conducted in March 2000 revealed cervical spondylosis, most marked at C3- 4. A private MRI conducted in June 2001 revealed mild disc bulge and right uncinate spurring encroaching on the right neural foramen at the C3-4. At the C4-5 level, there was a mild disc bulge and a small left lateral disc herniation encroaching on the bilateral neural foramen, left greater than right. At the C5-6 and C6-7 levels, there were mild disc bulges. There was mild to moderate spondylitic changes from the C3 through C7 levels. The veteran was hospitalized at a private facility in September 2001 and shortly thereafter, underwent complete laminectomies of C3, C4, C5, C6, C7 and T1, followed by extensive physical therapy and follow-up outpatient treatment for cervical stenosis/osteomyelitis. Furthermore, during an October 2004 VA examination, a cervical spine X-ray report showed significant cervical spondylosis and narrowing of the joint space at C4-5, C5-6 an C6-7, and the veteran was diagnosed with degenerative disease of the cervical spine. The October 2004 VA examiner opined that while the veteran's diagnosed neurological deficits are clearly documented, the connection with his military service is uncertain and an association with any injury during his military service appears unlikely. Rather he noted that in retrospect, the veteran probably had a muscle strain in 1968, which was labeled as myositis. His rationale for this opinion is that there was no evidence of bony injury at the time of the in- service injury in 1968 and that the veteran has had several normal spinal examinations documented in the years following the 1968 injury. Therefore, according to the VA examiner, an association between the documented 1968 injury or the alleged 1969 injury which the veteran did not seek treatment for and the cervical degenerative spine disease that manifested itself more than 30 years later appears unlikely. He also opined that it is not likely that the veteran's longstanding shoulder problems were the cause of his cervical spine disease. However, in support of his claim, the veteran submitted a March 2005 statement from C. Bash, MD in which Dr. Bash stated that due to the severity and extent of the veteran's cervical spine disease, he should be evaluated for systemic spine diseases such as ankylosing spondylitis and that an inquiry should be made into whether or not his neck pain in service represented the early manifestations of some contemporaneous undiagnosed systemic disease. Dr. Bash went on to state that if the veteran is found to have some type of chronic multilevel systemic disease then "his case should be reevaluated for service connection because these types of diseases are slowly progressive over time and would predispose him to his current spine disabilities." Dr. Bash also indicated that the veteran's then current neck diagnosis was not specific and needed to be "redone." The veteran argues that based on this opinion by Dr. Bash, another VA examination and opinion by a qualified medical expert is warranted. In light of the veteran's contentions, the medical evidence of record, including the veteran's service medical records, and the March 2005 opinion of Dr. C. Bash, the Board has determined that he should be afforded a VA examination to determine the etiology of any currently present cervical spine disability. The Court has mandated that VA ensure strict compliance with the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the present case, the Board notes that the February 2002 VCAA notice sent to the veteran provided the information and evidence necessary for service connection for a neck disability on a secondary basis, but did not provide adequate description of the information and evidence necessary to substantiate his claim for service connection for a neck disability on a direct basis. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Send the veteran a notice letter under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish service connection for a neck disability on a direct basis. This letter should also provide as an explanation as to the information or evidence needed to establish disability ratings and effective dates for the claims on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The veteran should be afforded a VA examination by a physician with appropriate expertise to determine the etiology of any currently present cervical spine disorders. The claims folder must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should identify all currently present cervical spine disorders. For each disorder identified, the examiner should proffer an opinion as to whether there is a 50 percent or better probability that the disorder originated during the veteran's military service or is otherwise etiologically related to service or service-connected disability. The examiner must provide the supporting rationale for each opinion expressed. 3. Then, the RO or the AMC should readjudicate the veteran's claim based on a de novo review of the record. If the benefit sought on appeal is not granted to the veteran's satisfaction, a supplemental statement of the case should be issued, and the veteran and his representative should be afforded the requisite opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. See 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. 2007). _________________________________________________ Robert E. P. Jones Acting 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) (2007).