Citation Nr: 1304376 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-25 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a cervical spine disorder. 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 August 1975 to July 1977 and from October 2006 to November 2006. She had additional service in the in the United States Navy Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2012. A transcript of the hearing is associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. In this case, the Veteran has not been afforded a VA examination in connection with her claim. Following her first period of active duty service from August 1975 to July 1977, the Veteran was commissioned as a Supply Officer in the Navy Reserve. She was mobilized to active duty in October 2006. She contends that she injured her neck while training in preparation for deployment during her mobilization. Specifically, she asserts that wearing body armor and carrying loaded packs and weapons aggravated a preexisting cervical spine disorder. A review of the service treatment records from the Veteran's service in the Reserves shows that she complained of a stiff neck in June 1986 during a period of active duty for training (ACDUTRA). She reported that she had right-sided neck pain after driving for ten hours to report for ACDUTRA. The diagnosis was a cervical strain. In a December 1994 private treatment note, the Veteran reported having chronic neck pain due to deteriorating cervical spine discs. Private magnetic resonance imaging (MRI) studies dated in September 2000 and January 2004 also indicated that the Veteran had degenerative disc changes at C5-6. In addition, the January 2004 report noted that she had posterior disc bulging at the C5-6 level. In March 2005, the Veteran's private chiropractic physician opined that that the Veteran had "NO restrictions" for her Reserve service due to her cervical spine and back. In a June 2005 report of medical history associated with a periodic health assessment, the Veteran indicated that she had numbness and tingling in her face secondary to bulging discs in her cervical spine. She also noted that her neck discomfort was relieved with decreased stress and chiropractic treatment. In a May 2006 periodic health assessment report and a September 2006 pre-deployment health screening, the Veteran was determined to be fit for full duty; however, in a September 2006 report of medical history, the Veteran reported that she had severe neck pain in the past. In a November 2006 private physical medicine and rehabilitation note, the examiner noted that the Veteran had a history of chronic neck problems. The Veteran reported that she had recently worn body armor during a training drill and developed increasing neck and parascapular soreness. The examiner ordered an MRI of the cervical spine. The MRI showed mild cervical spondylitic changes with loss of disc height and broad-based osteophytic lipping at C5-6 and a very minor disc bulge in the right paracentral area at C6-7. In April 2007, the Navy's Chief of the Bureau of Medicine and Surgery determined that the Veteran was not physically qualified for active service, promotion, transfer to, or retention in the Ready Reserve or Active Duty for training due to cervical disc degeneration. In May 2007, a Memorandum signed by the Commanding Officer of the Navy Operational Support Center indicated that the Veteran was not physically qualified for retention in the Ready Reserve while the medical review process was being finalized. In a June 2007 private opinion, W. A. K., D.C. (initials used to protect the Veteran's privacy), reported that the Veteran had pain in the right side of the cervical spine, which was present since she was involved in a slow speed motor vehicle accident in November 2003. The chiropractor indicated that the Veteran sought treatment in November 2006 following training to prepare for a deployment to Afghanistan. She told him that she was sent home from training because of the pain across her low cervical spine and upper thoracic spine "from not being able to hold up under the weight of full body armor and full combat gear." The chiropractor provided the following opinion: Since this patient has a chronic degenerative joint disease between the 5-6 cervical vertebrae, I feel that a resumption of training wearing body armor along with full combat gear will result in the same problems as the training in the autumn of 2006. She would not be able to look up for any appreciable periods of time due to pain and stiffness at the joint at the 5-6 cervical. Cervical extension for periods of more than one minute would be expected to take a heavy physical toll on her, likely causing an acute flare-up of low neck pain. I would expect this caution to include training at the firing range in the prone position as she would look up to fire at targets ahead of her.... Other than that, I feel that this patient is in very good physical health. She could run 1.5 miles and, in my opinion, perform all other features in training that would be expected of any other person of her gender in the US Navy." In a July 2007 service treatment note, an examining medical officer specializing in internal medicine evaluated the Veteran's medical status during a Physical Fitness Assessment. During the examination, the Veteran reported that she aggravated her neck during mobilization training by wearing body armor. The physician noted that the Veteran's medical history showed that she had cervical disc problems and neck pain "since at least the mid 1980s." He specifically noted that the Veteran's first entry for neck pain was dated in June 1986 when the Veteran complained of neck pain related to a ten hour drive. The medical officer included the following discussion in his evaluation report: This individual has a history of intermittent neck pain not associated with hard neurologic deficit. The occasional or episodic events date back far enough to suggest muscle tension or mild sprain as etiologic at least in the past. Currently[,] there is some radiographic evidence to support mild to moderate degenerative changes. These findings do not identify any impingement neurologic structures. The degenerative changes could account for some episodes of neck pain but service member reports no consistent regular or daily pain... The medical officer diagnosed the Veteran with episodic, musculotendinous neck pain related to isolated sprains or activity. He noted that it was "[p]ossibly aggravated" by minor degenerative changes in the cervical spine that were "probably age normal or at least common for age." He reported that the November 2006 neck pain "may represent an acute sprain process." As noted above, the Veteran has not been afforded a VA examination in connection with her current claim. Based on the foregoing, the Board finds that a medical opinion is necessary to determine whether the Veteran had a preexisting neck disorder, and if so, whether it was aggravated by her military service. Therefore, the case must be remanded for a VA examination and etiology to determine the nature and etiology of any current cervical spine disorder. Moreover, it appears that there may be additional medical records that are pertinent to the claim. In this regard, the claims file does not contain any treatment records pertaining to the Veteran's first period of active service. In addition, the RO made several unsuccessful attempts to obtain private neurology treatment records from J. M., D.O. (initials used to protect the Veteran's privacy). In March 2010, the RO was informed that the physician had moved his practice to Prescott, Arizona; however, it does not appear that records were sought from the physician's office in Prescott, Arizona. Therefore, attempts should be made to obtain any outstanding medical records. Accordingly, the case is REMANDED for the following action: 1. The RO should also contact the National Personnel Records Center (NPRC) and any other appropriate location to request all service personnel records and service treatment records. In particular, the RO should request service treatment records pertinent to the Veteran's first period of active service from August 1975 to July 1977. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2), the RO/AMC should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of any actions taken. 2. The RO/AMC should ascertain if the Veteran received any VA, non-VA, or other medical treatment that is not evidenced by the current record, to specifically include, but not limited to, private treatment records from a neurologist located in Prescott, Arizona. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of any cervical spine disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current cervical spine disorders. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) The examiner's attention is specifically drawn to the following evidence in making his or her determination: (a) A June 1986 service treatment note that shows the Veteran was treated for neck pain following a ten hour drive to Norfolk, Virginia, for a period of ACDUTRA; (b) A December 1994 private treatment note that documents the Veteran's report of chronic neck pain due to deteriorating cervical spine discs; (c) Private MRI studies dated in September 2000 and January 2004 indicating that the Veteran had degenerative disc changes at C5-6 and posterior disc bulging at the C5-6 level; (d) A June 2007 private opinion, signed by W. A. K., D.C. (initials used to protect the Veteran's privacy), that included the Veteran's report that she had pain in the right side of the cervical spine since she was involved in a slow speed motor vehicle accident in November 2003; and (e) A May 2009 statement from the Veteran that indicates she had no injuries following the November 2003 motor vehicle accident. If it is determined that any cervical spine disorder preexisted any period of active duty service, active duty for training, or inactive duty for training , the examiner should opine as to the likelihood that such preexisting disorder underwent a increase in severity during that period of service. If the examiner determines that there was an increase in severity, the examiner is asked to specify either that (a) the increase in severity was consistent with the natural progression of the disease or (b) that the increase represented a permanent worsening or "aggravation" of the disease beyond its natural progression. In making this determination, the examiner should consider that the temporary or intermittent flare-ups of a preexisting injury or disease is not sufficient to be considered "aggravation" unless the underlying condition, as contrasted with symptoms, worsened. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the above actions, the RO should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. When the development has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ JESSICA J. WILLS 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).