Citation Nr: 1308007 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 11-25 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for cervical spine arthritis, claimed as a neck condition. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from February 1951 to February 1953. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 is claiming service connection for a neck condition, which he alleges arose from an incident during basic training. Various statements in the record suggest that he had a 100 pound box of meat heaved at him and that he was not ready for it and fell backwards. On his initial claim in 1965 and subsequent claims over the years, he reported that such incident resulted in low back problems. He has subsequently established service connection for lumbar and thoracic spine degenerative disc disease. It was not until his December 2009 claim that he alleged that he also suffered a neck injury in service. Service treatment records note no complaints or findings concerning his neck or cervical spine, and his separation physical examination was negative for any cervical spine abnormalities. Private treatment records dating from 1968 to 1995 noted no complaints concerning the neck until March 1985. At that time he complained of right shoulder pain. X-ray of the cervical spine showed mild reversal of the "s" curve to the cervical spine. There was mild compression of C5 and C6 with intervertebral disc space narrowing. The neuroforamina looked patent. No prevertebral soft tissue swelling was found. The examiner noted the appearance of C5-6 suggests the possibility of old trauma. There were no destructive changes to suggest infection. He was seen in November 1994 with pain in the left neck. Impression was neck and left head pain due to cervical muscle spasm, strain, mild. Treatment records reveal the Veteran was in a motor vehicle accident in March 1995 in which he was rear ended. Cervical spine x-ray at that time revealed that C2 and C3 appeared to be fused at the level of the articular facets and anteriorly. There was marked degenerative disc disease with disc space narrowing at C5-6 and C6-7. Ossifications were noted anteriorly in the longitudinal ligament. No cervical spine fracture was present. The impression was cervical spondylosis from C5 to C7 and cervical fusion at C2-3. In December 2011, a private chiropractor wrote that he treated the Veteran in the fall of 1953 and that x-rays at that time showed evidence of significant arthritis in the cervical spine. The chiropractor stated that he had provided manipulation of the lumbar, thoracic and cervical spine areas. The Veteran's treatment records were no longer available but the chiropractor wrote that he remembered the x-rays because they were unusual given the Veteran's age. The Board notes the chiropractor is purportedly recalling events that occurred more than 50 years previously without review of prior record, which raises a serious question as to the reliability of the information being provided. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the significant time delay between the affiants' observations and the date on which the statements were written are factors that the Board can consider and weigh against a veteran's lay evidence). Indeed, in a prior statement in November 1996, that chiropractor noted he had treated the Veteran in 1954 for his lumbar spine, and noted that he sold his practice in 1990. In a statement from November 1997, the chiropractor acknowledged that after speaking with the Veteran, he realized that he had actually treated the Veteran in 1953 and that his prior recollection regarding the date had been mistaken. The Veteran had a VA examination in June 2010 at which he reported an incident during service in which he was knocked over backwards, jarring his neck and back. The examiner diagnosed the Veteran with cervical spine arthritis and felt it was less likely as not that it was caused by or a result of the Veteran's in-service injury. The rationale was that there was no evidence that he sustained any fractures or malalignment of the cervical spine that would have led to arthritis. It was much more likely that he developed arthritis with age. While the VA examiner acknowledged the report of the in-service incident, the rationale did not discuss the treatment records or imaging studies of the cervical spine, including one from 1985 reflecting the possibility of old injury and the one from 1995 contemporaneous to a car accident revealing degenerative disc disease and a fusion of C2-3. Therefore, the Board finds that an additional medical opinion is necessary. 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 action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain relevant VA treatment records from February 2008 to the present from the James A. Haley Veterans Hospital in Tampa, Florida and from 2007 to the present from the William S. Middleton Memorial Veterans Hospital in Madison, Wisconsin, and associate them with the claims file or Virtual VA file. 2. Thereafter, provide the claims file to a VA neurosurgeon or orthopedic spine surgeon. If the specialist determines that a physical evaluation or examination of the Veteran is required, one should be scheduled. Following review of the claims file, the specialist should provide an opinion as to whether it is at least as likely as not that the Veteran's cervical spine disability is related to active service, to include the incident in basic training wherein he was knocked over backwards by a 100 pound package heaved at him, and sleeping on the cold ground in Korea. In rendering the opinion, the specialist should address the significance, if any, of the March 30, 1985 x-ray reflecting the possibility of old injury and the one from March 1995 contemporaneous to a car accident revealing degenerative disc disease and a fusion of C2-3. A complete rationale for all opinions must be provided. If an opinion cannot be provided without resorting to speculation, the examiner must explain why an opinion cannot be provided. 3. After the above has been completed to the extent possible, the claim should be readjudicated. If the benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The appellant 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. 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).