Citation Nr: 1306528 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 10-09 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a neck injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from August 1984 to July 1996. She had additional service in the Army Reserves. This matter comes to the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran was afforded a videoconference hearing before the Board in December 2012. A transcript of the testimony offered at this hearing has been associated with the record. 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 she incurred a neck injury while stationed at Fort Benning, Georgia during the time period of July 1992 to September 1992. Specifically, she has credibly testified that while attending officer candidate school at Fort Benning, she was doing a rappelling exercise. She stepped off the tower in her gear, and immediately fell backwards, upside down, hitting her head on the tower. The next morning she was unable to do physical training with her squad, as she had difficulty moving her neck and her head was pounding. She went to sick call and was given 24 hours of quarters time. She further testified that she has had neck pain ever since that incident. The available active duty service treatment records disclose no history of injury, and a formal finding of unavailability of these records has been made. However, the Veteran has credibly reported a history of pain in her neck while in service, and ever since the injury. The record notes a current diagnosis of degenerative arthritis in the cervical spine. These circumstances satisfy the low threshold for obtaining a VA examination as contemplated by McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, a VA examination is necessary to decide this claim. Also, the Board notes that the Veteran has reported that during her service in the Army Reserves, she was also treated for complaints of neck pain at Fort Carson and Peterson Air Force Base. Records from Fort Carson are in the file. However, no records from Peterson Air Force Base have been obtained. In conjunction with a prior claim, the RO had contacted the Records Management Center (RMC) to obtain the Veteran's Reserve records in January 2003 under the Veteran's maiden name; however, the records received in response only contained a December 2000 periodic medical examination and history. In conjunction with the current claim, the RO again contacted the RMC, using the Veteran's current last name. In February 2009, the RMC sent an additional record. The RMC noted in this submission that they had concluded that no other records exist for the Veteran at that location. Despite the absence of records at the RMC, it remains unclear to the Board whether the full scope of the Veteran's Reserve service has been determined, and whether all sources have been searched for available records, e.g., Peterson Air Force Base, in particular. VA is under a duty to make as many requests as are necessary to obtain records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2). In the absence of a formal finding of unavailability, the Board cannot tell if Peterson Air Force Base records may be obtained from a source apart from the RMC. (CONTINUED ON NEXT PAGE) Accordingly, the case is REMANDED for the following action: 1. Contact Peterson Air Force Base to obtain any outstanding records for this Veteran during her Army Reserve service for incorporation into the claims file. Please make the request under the Veteran's maiden and current last names. Perform any and all follow-up as necessary, and document negative results. 2. After the development directed in paragraph 1 has been completed to the extent possible, schedule the Veteran for a VA examination by an appropriate medical professional for the purpose of ascertaining the presence, nature and likely etiology of any neck condition. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed. The examiner should obtain a complete, pertinent history from the Veteran. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any neck condition is attributable to service, particularly her reported 1992 rappelling incident. In rendering the requested opinion, the examiner must specifically acknowledge and discuss the competent and credible lay evidence regarding the onset of neck pain reported by the Veteran, as well as the competent and credible lay testimony regarding experiencing that pain since then. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any and all opinions must be accompanied by a discussion of the underlying reasons. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. After the development requested above has been completed to the extent possible, review the record and readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned to the Board. The case should then be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of the veteran's claim. The veteran need take no action unless otherwise notified, but he may submit additional evidence and argument on the matter the Board has remanded to the regional office. 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). _________________________________________________ BETHANY L. BUCK 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).