Citation Nr: 1127232 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 07-10 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Kathy Lieberman, Attorney ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1980 to January 1983 and from February 2003 to July 2004, and, as discussed below, may have additional periods of active service. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In March 2009, the Board, in pertinent part, denied service connection for a cervical spine disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which, in a January 13, 2010 Order, granted the parties' Joint Motion for remand, vacating that part of the Board's March 2009 decision that found that the Veteran was not entitled to service connection for a cervical spine disorder and remanded the case back to the Board for compliance with the terms of the Joint Motion. 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 seeks service connection for a cervical spine disorder. In the Joint Motion accompanying the January 2010 Court Order, the parties agreed that the Board erred in its legal analysis of whether the Veteran's cervical spine disorder pre-existed his period of service from February 2003 to July 2004, and that the Board should re-adjudicate the claim. However, before addressing the terms of the Joint Motion, a review of the Veteran's claims file indicates that additional development by the RO/AMC is required. An April 2007 Statement of Medical Examination and Duty Status indicates that upon returning from mobilization from Iraq during re-deployment the Veteran complained of low back pain. This document indicates that he was on active duty. It therefore appears that the Veteran may have had a third period of active duty following his second period of duty from February 2003 to July 2004, and the RO has taken no actions to attempt to verify this and obtain service treatment or personnel records associated with that service. VA's duty to assist the appellant in developing the evidence in support of his claim pursuant to 38 U.S.C.A. § 5103A, includes assisting him in obtaining service personnel and treatment records, and this case must therefore be remanded so that the RO can attempt to obtain any outstanding service personnel and treatment records. Additionally, although the Veteran submitted a waiver of initial consideration by the agency of original jurisdiction in December 2008, regarding a November 2008 Physical Evaluation Board (PEB) report, the RO has received other potentially relevant evidence unaccompanied by a waiver of initial consideration by the agency of original jurisdiction. The RO/AMC has not adjudicated this evidence in regard to the current issue on appeal in a supplemental statement of the case (SSOC) in the first instance, and therefore a remand pursuant to 38 C.F.R. § 20.1304(c) (2010) is required. Accordingly, the case is REMANDED for the following action: 1. Take all necessary actions, including contacting the service department and National Personnel Records Center (NPRC), to obtain any and all outstanding DD Form 214s and service personnel and treatment records for any period of active service the Veteran may have had after July 2004. Note all requests and negative responses in the claim file. 2. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. The claim should then be readjudicated. If the claim remains denied, the RO should issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claim and allow an appropriate period of time for response. The SSOC must specifically refer to the evidence received by the RO since its last SSOC in September 2007 and the November 2008 PEB. The Veteran 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 Supp. 2010). _________________________________________________ A. C. MACKENZIE 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) (2010).