Citation Nr: 1314145 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 06-30 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active duty service from October 1969 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In May 2011, the Veteran presented testimony during a Board hearing before the undersigned. A transcript of the proceeding is of record. In a May 2012 decision, the RO reopened a claim of entitlement to service connection for allergic rhinitis, denied a petition to reopen a claim of entitlement to service connection for bilateral hearing loss, dismissed service connection claims for a right knee disorder, a right hip disorder, a left hip disorder, and denied an initial compensable evaluation for residuals of right eye corneal abrasion. The issues of entitlement to service connection for allergic rhinitis, a cervical spine disorder, and a lumbar spine disorder were remanded for additional development. In February 2013, the RO granted entitlement to service connection for seasonal allergic reaction (claimed as upper respiratory infection) and entitlement to service connection for lumbosacral strain (claimed as low back condition). After the most recent supplemental statement of the case, the Veteran submitted additional medical evidence that was not accompanied by a waiver of initial RO consideration. However, as this matter must be remanded for other reasons, the RO will have the opportunity to review this evidence. The Board notes that, in addition to the physical file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. 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 Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). In this case, the Board notes that this matter was previously remanded in May 2012 in part to obtain outstanding service treatment records and Air Force Reserve records. A search was undertaken and additional service treatment records were found to be unavailable from the National Personnel Records Center. In addition, a response was received from the Department of the Air Force indicating that service treatment records and EOD and RAD examination reports were located at the VA, that there were no line of duty determinations identified for the Veteran, and that, in addition to his active duty service dates noted above, the Veteran retired from the United States Air Force Reserves in January 2010. However, the Department did not, as requested in the RO's May 2012 letter, show which dates were active duty and which were active duty for training. In this regard, the Board notes that only service department records can establish if and when a person was serving on active duty, active duty for training (ACDUTRA), or inactive duty training (IDT). See Cahall v. Brown, 7 Vet. App. 232, 237 (1994). As such, VA should undertake efforts to verify the dates of ACDUTRA and IDT for such service. After development, the Veteran was also afforded a VA examination in order to determine whether he has a cervical spine disability that is related to his military service. This was accomplished in June 2012. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran was diagnosed with cervical degenerative disc disease. The Veteran reported that he developed neck stiffness while in the military. He did not go to the clinic about this and indicated that he did not think he saw any private physician about this either. The Veteran continued to have a stiff neck daily and had to turn his shoulders when looking over his shoulder. He noticed this while driving and that it worsened when sitting at the computer, or with any prolonged sitting and in cold weather. The Veteran indicated that the stiffness was constant, aching, and moderate to severe. He denied radiation of pain, but indicated that he experienced numbness in his right hand due to carpel tunnel condition. X-rays indicated moderately advanced degenerative disc disease of the cervical spine. The examiner stated that the claimed condition was less likely than not (less than 50 percent ) incurred or caused by the claimed in-service injury, event, or illness. In this regard, the examiner stated that there was no clinical evidence that the Veteran complained of or sought treatment for neck pain while in the military. After this examination, the Veteran provided additional medical records reflecting a diagnosis of osteoarthritis of the cervical spine in December 2004. Such records also reveal complaints of intermittent neck pain. X-rays at the time indicated multilevel degenerative disc disease of the cervical spine, mild to moderate. In addition, x-rays dated in April 2001 indicated degenerative disc, bone and joint changes at several cervical levels. A summary of treatment from the Veteran's private physician indicated treatment for cervical sprain/strain dating from March 2001. Based on the foregoing, the Board finds that this matter must be remanded. The RO should request specific dates for the Veteran's active and inactive duty for training in the Air Force Reserves. Afterwards, the claims file should be forwarded to the examiner that conducted the June 2012 VA examination. The examiner should review all evidence of record, to include the prior diagnostic studies and VA examination reports, and should provide an addendum report as to the nature and etiology of the Veteran's cervical degenerative disc disease. Specifically, the examiner should determine whether the Veteran's condition was incurred in or permanently aggravated by a period of active or inactive duty for training in the Air Force Reserves. The Veteran's statements, to include his May 2011 hearing testimony to the effect that he believed he first sought treatment for his neck in the mid-1990s, should also be considered. If any further testing or diagnostic studies are required prior to offering such opinions, they should be scheduled. If the June 2012 VA examiner is not available, the Veteran should be scheduled for another VA examination concerning these questions. Upon remand, the Veteran should also be afforded an opportunity to submit additional medical evidence in connection with his claim. VA treatment records should also be updated. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain identified outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Request from the Department of the Air Force specific dates for the Veteran's active and inactive duty for training in the Air Force Reserves. VA is reminded that it should continue efforts to procure the relevant records relating to the Veteran's Reserve service until either the records are received, or until it receives specific information that the records sought do not exist or that further efforts to obtain them would be futile. To the best of it abilities, VA should make a list of the Veteran's actual periods of ACDUTRA and IDT in the Reserves and provide it to the VA examiners. All records and/or responses received should be associated with the claims file. 2. Take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disability. This should specifically include updated VA treatment records. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 3. After all available records have been associated with the claims file, if the individual who conducted the June 2012 VA examination is available, forward the entire claims file, including a copy of this remand, for an addendum report in response to the following questions. Review of the claims file should be noted in the examination report. If any further testing or diagnostic studies are necessary prior to offering such opinions, they should be completed. If the June 2012 VA examiner is not available, schedule the Veteran for another VA examination to determine the nature and etiology of his claimed disability. All necessary tests and studies should then be conducted. The examiner should respond to the following questions: Is it at least as likely as not that the Veteran's degenerative disc disease of the cervical spine is the result of injury or disease incurred during any period of ACDUTRA in the Reserves or an injury during a period of IDT in the Reserves? If the examiner finds that the Veteran had a cervical spine disability prior to ACDUTRA or IDT service, the examiner should then state whether such disorder was more likely, less likely or at least as likely as not (50 percent or greater probability) aggravated (permanently worsened beyond the natural progression of the disease) during a period of ACDUTRA or IDT service. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 4. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issue remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. 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). _________________________________________________ ERIC S. LEBOFF 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).