Citation Nr: 1300170 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 10-48 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1975 to October 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2012. A transcript of the hearing is associated with the claims file. 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 issue of entitlement to service connection for a cervical spine disability must be remanded for further development of factual and medical evidence, to specifically include obtaining any outstanding VA treatment records and private treatment records and to obtain a VA medical opinion which addresses all theories of entitlement raised by the Veteran and the evidence of record. During the April 2012 hearing, the Veteran testified that he was treated for his cervical spine disorder by a private physician for the past ten years. See Travel Board hearing transcript, p. 4. The record was held open to allow the Veteran the opportunity to locate and submit the outstanding private records, but no such records were submitted. The Board notes that the most recent VA treatment records associated with the record are dated in July 2004. Therefore, further attempts should be made to obtain any outstanding VA treatment records pertinent to the claimed cervical spine disability. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). The Veteran has been diagnosed with degenerative disc disease of the cervical spine. See July 2009 private x-ray study of the cervical spine. Moreover, he has testified as to continuity of symptomatology. He contends that he injured his cervical spine during an in-service motor vehicle accident in January 1986, and that he has had neck pain since that time. See Travel Board hearing transcript, pp. 2, 6. There is evidence that the Veteran was involved in a motor vehicle accident in service. The Board notes the Veteran had complaints of lower back pain at that time. However, the evidence reflects that there is a current cervical spine disability that may be associated with service. Since the evidence is insufficient to render a decision on this claim, a VA examination as to the etiology of this disability is warranted. Accordingly, the case is REMANDED for the following action: 1. Ascertain if the Veteran received any VA, non-VA, or other medical treatment that is not evidenced by the current record - to specifically include, private treatment records pertaining to treatment for complaints referable to the cervical spine pain from a private physician identified during the Travel Board hearing (see Travel Board hearing transcript, p. 4), and any VA treatment records not associated with the record. The AOJ must provide the Veteran with authorization forms for the release of any identified outstanding private treatment records. The AOJ must then obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. 2. Schedule the Veteran for a VA spine examination for the purpose of ascertaining whether the Veteran's claimed cervical spine disability is the result of any in-service event or incident, to include a January 1986 motor vehicle accident documented in the service treatment records. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should first identify whether the Veteran has a current cervical spine disability, to include degenerative disc disease and/or arthritis. Then, as to any diagnosed disability, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the disability is related to an in-service injury from a January 1986 motor vehicle accident or anything else in service. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. 3. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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. 2012). _________________________________________________ H. N. SCHWARTZ 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) (2012).