Citation Nr: 1307587 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-24 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for left levator scapula syndrome with upper back and neck condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from February 1983 to February 1987 and from January 2003 to May 2004, with additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the RO in November 2007. The Veteran testified at a June 2012 hearing before the undersigned Veterans Law Judge. A transcript of those proceedings has been associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. Such file includes VA treatment records. Thus, any future consideration of this appellant's case should take into account the existence of this electronic 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 While further delay is regrettable, the Board notes that additional development is necessary. The Veteran's March 2007 claim requested service connection for a compression in the upper back and neck vertebrae which he alleges began during his tour in Iraq from 2003 to 2004. He stated that since his second period of service his neck snaps and cracks constantly, and that both his neck and upper back are sore. He contends the condition is related to being bounced and jostled while travelling in a truck over rough terrain and wearing a helmet. He stated that occasionally his head would hit the roof of the truck when they hit a big hole. Service treatment records from the Veteran's first period of service reveal that in October 1983, he was seen for cuts and bruises from an accident in which he was reportedly caught between a building and a 11/2 ton trailer. He had abrasions of the right and left elbows and several contusions on the right shoulder. The assessment was soft-tissue injury to right should and back. An undated report in 1983 noted he had back pain of one day after lifting a trailer. The assessment was strained muscles. In June 1985 he was seen for a complaint of injuring his low back lifting gas cans. There was mild spasm over the inferior right trapezius. The assessment was strain. Although the Veteran alleges his neck and upper back condition was not evident prior to his 2003 deployment, the claims file reflects that the Veteran was treated for cervical pain since 2000. In this regard, a letter from Dr. D.C.D., a chiropractor, dated in June 2007 reflects that he treated the Veteran for cervical brachial pain since July 12, 2000. In a December 2009 addendum, the chiropractor noted that x-ray films from July 12, 2000 revealed a mild osteophyte formation on C4 with very mild disc degeneration, and mild facet arthrosis at C4-C5-C6. Additional records from Dr. D.C.D. dated in June 2002, note tenderness in the suboccipital, rhomboid, and thoracolumbar regions. In September 2002, the diagnoses were torticollis and cervical, thoracic and lumbar segment dysfunction. He was seen in December 2002 with stiffness and soreness in the neck and back after laying carpet. Service treatment records dated in June 2003 reflect that the Veteran was assessed with a strained back. In a March 2004 Post-Deployment Health Assessment, the Veteran responded affirmatively to having back pain during deployment but not at present. He also responded affirmatively to having muscle aches both during deployment and at present. The Veteran underwent VA examinations in June 2007, November 2007, and April 2010. However, none of these examinations address whether the Veteran's claimed condition is related to the complaints of soft tissue injury and muscle strains during his first period of service. Moreover, the Veteran appears to have provided the actual x-ray films from July 2000, February 2007, February 2008 and December 2009. As these films are pertinent to the Veteran's contention that his neck and upper back disability was caused/worsened by his deployment in 2003 and 2004, an additional VA evaluation is necessary. The Board notes that a pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of a veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Obtain relevant VA treatment records dated from January 2012 to the present from the Des Moines VA Medical Center. 2. After the above has been completed to the extent possible, the Veteran should be afforded a VA evaluation by a physician to obtain an opinion regarding whether the Veteran's current upper back and neck disability is related to either period of service. The claims folder must be made available to and be reviewed by the examiner in conjunction with the evaluation. If the physician determines that a physical examination is necessary to respond to the questions, one should be scheduled. Following review of the claims file, to include the x-ray films provided by the Veteran and any relevant electronic VA treatment records, as well as any current examination of the Veteran deemed necessary by the examiner, the physician should respond to the following questions: (a) Is it more likely (greater than 50% probability), less likely (less than 50% probability), or at least as likely as not (50% probability) that the current upper back and neck disability is related to or a maturation of the Veteran's complaints during his first period of service from 1983 to 1987 (noted as soft tissue injury and muscle strains)? Please explain the reasoning for the opinion. (b) If not, does the evidence undebatably show that the Veteran suffered from an upper back or neck disability prior to his January 2003 to May 2004 period of service? In responding to this question, please address the significance of the x-ray findings from July 2000 and the treatment records from the Veteran's chiropractor dating in 2002. Please explain the reasoning for the opinion. (c) If the Veteran did suffer from an upper back or neck disability prior to his second period of service, was that disability permanently worsened during his second period of service, to include the Veteran's report of wearing a helmet, being bounced and jostled in the truck while riding over rough terrain, and occasionally hitting his head on the roof of the truck? Please explain the reasoning for the opinion. (d) If there was a permanent worsening in the pre-existing disorder, was the worsening undebatably the result of the normal progression of the pre-existing disorder? Please explain the reasoning for the opinion. (e) If the examiner concludes that a pre-existing upper back and neck disability was permanently worsened beyond normal progression (aggravated) by military service, the examiner should opine on whether the current upper back and neck disability is related to the aggravation of the upper back and neck during service. Please explain the reasoning for the opinion. 3. After the development requested above has been completed to the extent possible, the RO/AMC should again review the record. If the benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant 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). _________________________________________________ K.A. BANFIELD 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).