Citation Nr: 1303589 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 10-22 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for degenerative changes and narrowed disc space of the cervical spine. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from January 1966 through January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A timely Notice of Disagreement (NOD) was received from the Veteran in November 2009. After a Statement of the Case (SOC) was issued in May 2010, the Veteran perfected his appeal later that month, via VA Form 9 substantive appeal. This matter was remanded previously by the Board in July 2011 for further development. Following development, the case has been returned to the Board for further appellate consideration. For the reasons discussed below, finds that this matter must be remanded again for further claims development. 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 Unfortunately the Board finds that further RO action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on the matter on appeal. An inquiry with the Social Security Administration (SSA) revealed that the Veteran was receiving social security disability benefits. Indeed, a June 2009 notice of award issued by the Social Security Administration (SSA) reflects that the Veteran began receiving social security disability benefits at that time. No efforts have been made by VA to obtain the Veteran's social security records. The Veteran's social security records are likely to contain additional evidence pertaining to the Veteran's cervical spine disability, and thus, are likely to be relevant to this appeal. Under the circumstances, VA must undertake efforts to obtain the social security records. 38 C.F.R. § 3.159(c)(2); see also Baker v. West, 11 Vet. App. 163, 139 (1998) (holding that VA's duty to assist includes obtaining SSA records); Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (clarifying that VA's duty to obtain social security records applies only to records relevant to a Veteran's present claim). Consistent with the Board's prior remand, the Veteran was afforded a VA examination of his cervical spine in October 2011. Based upon objective findings from clinical examination and radiological studies, the examiner diagnosed degenerative joint disease of the cervical spine; however, opined that it is less likely than not that the diagnosed disorder was incurred during active duty service or caused by an in-service injury. The Board finds that this opinion is not adequate. In particular, the opinion is based on the lack of documentation of a cervical spine injury or condition in the Veteran's service treatment records. However, it is unclear what significance, if any, the examiner placed on the Veteran's credible reports of jumping from helicopters during service and his carrying a large pack may have had on his cervical spine. On remand, the examiner should discuss the relationship, if any, between the Veteran's in-service helicopter jumps and his carrying of a large pack during service. Moreover, in a recently received June 2012 statement, the Veteran raised the theory that his current cervical spine disability may be the manifestation of in-service aggravation of the Veteran's childhood spinal meningitis. A review of the service treatment records shows that a pre-service history of meningitis was noted in an October 1965 enlistment examination report. Where, as here, a disability that pre-existed service is noted in the enlistment examination report, the Veteran is not presumed to have been of sound health at the time of his enlistment. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Service connection may be granted for a pre-existing disability where the evidence shows that the pre-existing disability was aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see also Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). In this case, the VA examiner did not comment upon the Veteran's pre-existing spinal meningitis. Given the Veteran's newly raised assertion that his current cervical degenerative joint disease may be a manifestation of in-service aggravation of his pre-existing spinal meningitis, VA should seek an addendum from the same VA examiner who performed the October 2011 VA examination, stating the examiner's opinion as to whether the Veteran's current cervical spine degenerative joint disease is the manifestation of in-service aggravation of pre-existing spinal meningitis. If the examiner determines that the opinion sought cannot be given without a full examination of the Veteran, or the same VA examiner who performed the March 2011 VA examination is unavailable, the Veteran should undergo a new VA examination, by an appropriate physician. 38 C.F.R. § 3.159(c)(4). Prior to obtaining the addendum and/or examination, and in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any private or VA treatment providers who have rendered treatment for his cervical spine disability since August 2011. VA must then also make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim for service connection for degenerative changes and narrowed disc space of the cervical spine. This letter must inform the Veteran about the information and evidence that is necessary to substantiate his claim, and also, must provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) of any private or VA medical providers who have provided treatment for his cervical spine since August 2011. 2. Make efforts to obtain the records of any treatment identified by the Veteran. Also, contact SSA and obtain all records associated with the Veteran's application for and/or grant or denial of SSA disability benefits. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of any unsuccessful efforts in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the above development has been completed to the extent possible, the claims file should be provided to the same VA examiner who performed the Veteran's October 2011 VA examination. The examiner should be asked respond to the following inquiries: (a) is it at least as likely as not (at least a 50 percent probability) that the Veteran's cervical spine degenerative disc disease is etiologically related to the Veteran's in-service helicopter jumps or carrying a large pack during service. In rendering this opinion, the examiner should consider the all relevant evidence in the claims file, to include the Veteran's service treatment records, service personnel records, post-service VA treatment records, lay assertions, and the findings from the examiner's October 2011 examination. (b) is it at least as likely as not (at least a 50 percent probability) that the Veteran's cervical spine degenerative disc disease is a manifestation of in-service aggravation of spinal meningitis. In rendering this opinion, the examiner should consider the all relevant evidence in the claims file, to include the Veteran's service treatment records, service personnel records, post-service VA treatment records, lay assertions, and the findings from the examiner's October 2011 examination. If the examiner determines that the opinions sought cannot be rendered without a re-examination of the Veteran, or, the same VA examiner who performed the October 2011 VA examination is unavailable, then the Veteran should be afforded a VA examination, performed by an appropriate physician, to explore the medical issues posed above. The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. All relevant findings from the Veteran's medical history, clinical findings, subjectively reported symptoms, and associated functional impairment should be reported. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete explanation must be provided for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation. 4. After completion of the above development, the issues of the Veteran's entitlement to service connection for degenerative changes and narrowed disc space of the cervical spine should be readjudicated. In readjudicating the Veteran's claim, the RO should consider whether service connection is warranted, either on the basis that the Veteran's cervical spine disability is etiologically related to his active duty service, or, that the Veteran's current cervical spine disability is the result of the in-service aggravation of pre-service spinal meningitis. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2011). _________________________________________________ DAVID L. WIGHT 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).