Citation Nr: 1307014 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 10-00 402A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to service connection for degenerative disc disease of the cervical spine. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active military service from February 1958 to January 1987, to include Vietnam service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the RO. In his January 2010 Substantive Appeal, the Veteran requested a video-conference hearing before a Veterans Law Judge. However, in correspondence received in October 2012, the Veteran withdrew his hearing request. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to obtain a VA examination. The Veteran seeks service connection for degenerative disc disease of the cervical spine. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The Veteran asserts that he has a current cervical spine disorder that onset in service with continuous symptoms. An August 1986 service treatment record reflects the Veteran's complaints of pain in his neck (cervical spine) and shoulders bilaterally. The Veteran indicated that the pain onset gradually and that he had been having the pain for two years. An August 1986 orthopedic clinic record documented the findings of an x-ray report which showed cervical spine with osteopenia, otherwise shoulder film within normal limits bilaterally. A November 1986 examination indicated the Veteran did not report any spine problems. Subsequent to service, a May 2003 treatment record indicates MRI of the cervical spine showed degenerative disc disease. The diagnosis was cervical strain related to arthritic change. A May 2010 treatment record documents the Veteran's complaint of continued neck strain. Relevant diagnosis was cervical sprain/cerviclagia. October 2010 x-ray report findings show loss of intervertebral disc space at C3-C7 with anterior and small posterior osteophytes C3-C7. Vertebral body heights and bony mineralization was normal and prevertebral soft tissues were maintained. The impression was degenerative changes of the cervical spine as described. Finally, an April 2011 CT scan of the cervical spine showed spondylosis and degenerative disc disease with some foraminal stenosis. Because there is evidence of currently diagnosed disabilities, in-service complaints of neck pain, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and obtain the names and addresses, and approximate dates of recent treatment of all medical care providers who treated him for his claimed cervical spine disorder. After he has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. He and his representative are to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his cervical spine disorders. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that each diagnosed cervical spine disorder was caused or aggravated by the Veteran's military service. The examiner must specifically address the relevant service treatment records including the July and August 1986 treatment records, and the November 1986 examination, and the Veteran's assertions of continuous symptoms. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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. 2012). _________________________________________________ K. MILLIKAN Acting 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).