Citation Nr: 1306984 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 06-25 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: National Veterans Organization of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1970 to January 1972, including service in the Republic of Vietnam. He received the Army Commendation Medal. This matter initially came before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In that decision, the RO denied the Veteran's petition to reopen a claim of service connection for degenerative disc disease of the cervical spine as new and material evidence had not been received. The RO in Albuquerque, New Mexico, currently has jurisdiction over the Veteran's claim. The Veteran testified before the Board at an October 2007 videoconference hearing. A transcript of that hearing has been associated with his claims folder. In December 2007, the Board denied the petition to reopen the claim of service connection for a cervical spine disability as new and material evidence had not been received. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a December 2009 memorandum decision, the Court reversed the Board's December 2007 finding that new and material evidence had not been received to reopen the claim of service connection for a cervical spine disability and remanded the case for readjudication in compliance with directives specified in the Court's decision. In October 2010 and February 2012, the Board remanded this matter for further development in compliance with the Court's decision. The Veteran had also perfected an appeal with regard to the issue of entitlement to service connection for erectile dysfunction, and the Board had remanded this issue in February 2012 for further development. In October 2012, the Appeals Management Center (AMC) granted service connection for this disability, and thereby resolved the appeal as to that issue. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and considered as part of this appeal. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A January 2011 VA examination report includes a diagnosis of degenerative disease of the cervical spine. Thus, a current cervical spine disability has been demonstrated. The Veteran contends that his current cervical spine disability is related to various strenuous activities performed in service, including hauling ammunition and moving heavy weaponry. In the alternative, he claims that the disability is related to his presumed exposure to herbicides in Vietnam. The January 2011 VA examination report includes an opinion that a conclusion as to whether the Veteran's cervical spine disability was casually related to service could not be provided without resorting to mere speculation. This opinion was based on the fact that there was no documentation of any in-service neck condition, that the Veteran related a history of general heavy labor in service without any specific mention of a neck injury, and that he first reported neck problems in 1996. There was no documentation to establish the existence of a neck condition prior to 1997 and there were no neck abnormalities noted during the Veteran's January 1972 separation examination. In light of the inadequacy of the January 2011 opinion, the Board remanded this matter in February 2012 and instructed the physician who conducted the January 2011 VA examination to provide a new opinion as to the etiology of the current cervical spine disability. In May 2012, the examiner opined that it was not likely ("less likely as not") that the Veteran's current cervical spine disability was causally related to his in-service duties involving the movement of heavy artillery, the hauling of ammunition, and other heavy lifting. He reasoned that a review of the Veteran's service treatment records failed to confirm his history and that the disability was not reported until 14 years after service. The February 2012 opinion is also inadequate because it appears to be based entirely on a lack of objective evidence of the Veteran's reported duties in service and of neck problems for many years after service. He, however, is competent to report his in-service duties and such reports were apparently discounted without explanation. In this regard, a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Thus, a remand is necessary to obtain a new opinion as to the etiology of the Veteran's current cervical spine disability. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). A December 2002 VA biopsychosocial assessment note reveals that the Veteran was reportedly unable to work due to medical problems and that he had been denied Social Security Administration (SSA) disability benefits for an unspecified disability. The Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). The medical records related to the SSA's disability determination have not yet been associated with the claims file and may be relevant. Additionally, the Veteran reported in a November 1997 claim (VA Form 21-526) that he experienced neck problems. In support of his claim, he submitted an "Authorization for Release of Information" form (VA Form 21-4142) on which he reported that he had received general treatment at the VA Medical Center in El Paso, Texas (VAMC El Paso) beginning in the mid 1980s. The agency of original jurisdiction (AOJ), however, only requested records from this facility dated since January 1997 and no further efforts have been taken to attempt to obtain records from this facility prior to January 1997. The treatment records in the claims file and among the Veteran's paperless records in the Virtual VA system are contained in the El Paso and Albuquerque Vista electronic records systems and are dated to November 2011. Thus, it appears that there may be additional VA treatment records that have not yet been obtained. VA has a duty to obtain any such additional relevant records. See 38 U.S.C.A. § 5103A(b), (c); see also Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until they are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. Obtain and associate with the claims file all records of the Veteran's treatment for a cervical spine disability contained in the El Paso and Albuquerque Vista electronic records systems dated prior to January 1997 and from November 2011 through the present, and from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until they are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records and any records from the SSA, schedule the Veteran for a VA examination with an examiner who has not yet examined him to obtain an opinion as to the etiology of his current cervical spine disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such shall be reflected in the completed examination report or in an addendum. For any current cervical spine disability identified (i.e. any cervical spine disability diagnosed since May 2005, including degenerative disease of the cervical spine), the examiner shall answer the following question: Is it at least as likely as not (50 percent or greater probability) that the current cervical spine disability had its onset in service, had its onset in the year immediately following service, is related to the Veteran's presumed exposure to herbicides in service, is related to his reported duties in service (including hauling ammunition and moving heavy weaponry), or is otherwise related to a disease or injury in service? In answering the above question, the examiner must acknowledge and discuss all cervical spine disabilities diagnosed since May 2005, the Veteran's presumed exposure to herbicides in service, and his reported duties in service (including hauling ammunition and moving heavy weaponry). For purposes of the above opinion, the examiner shall presume that the Veteran's reports of his duties in service are accurate. The examiner must provide a rationale for each opinion given. The examiner is advised that the Veteran is competent to report his duties in service, symptoms, and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The absence of evidence of treatment for cervical spine problems in the Veteran's service treatment records or for many years after service cannot, standing alone, serve as the basis for a negative opinion. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) If the examiner rejects the Veteran's reports of symptomatology, the examiner must provide a reason for doing so. 4. After conducting any additional indicated development, readjudicate the issue on appeal. If any benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case. Thereafter, the case shall be returned to the Board, if in order. 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 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). _________________________________________________ JAMES L. MARCH 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).