Citation Nr: 1314382 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 07-37 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1945 to February 1947. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to service connection for a cervical spine disability. In December 2008, the Board remanded the claim for further development. In August 2009, the Board denied the claim and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). A Joint Motion for Remand was filed with the Court and in an April 2010 Order, the motion was granted pursuant to the instructions in the Joint Motion. In March and July 2011, the Board remanded the claim for further development. In October 2011, the Board denied the claim and the Veteran appealed the decision to the Court. A Joint Motion for Remand was filed with the Court and in an October 2012 Order, the motion was granted pursuant to the instructions in the Joint Motion. 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 While attempts to obtain official service records regarding the claimed motor vehicle accident in June 1946 where the Veteran claims to have injured his neck have not been obtained, statements by the Veteran, his brother and SY are sufficient to establish that an event occurred in which the Veteran may have injured his neck. The Veteran filed his claim for a neck injury in November 2006. At this time, he stated his disability began in November 1944 (he entered service in June 1945). He said was never treated by anyone for this disability. A July 2006 letter (which was unsigned; the Veteran later indicated his wife wrote it) stated that the Veteran's neck disability had worsened over time. A September 2006 statement from the Veteran's brother showed that the brother remembered receiving letters from the Veteran when he was in service in Europe. The brother remembered an important letter about the Veteran's trip to Florence, Italy where the Veteran was in a vehicle accident. The Veteran wrote that he had been hurt in the accident but did not go to the hospital; it took two weeks for him to recover from the injury. The Veteran did not "make a big deal" about the wreck in his letter. The brother said he had to be careful not to tell their mother what the Veteran had written. The time of the accident was about January 1946. In April 2007, VA received a January 2007 statement from the Veteran's wife. She stated that she has been married to the Veteran for 55 years and the Veteran treated his injury "all though the many years" of their marriage. She stated they worked together for 40 years, but the Veteran re-injured his neck and back; he could not work anymore. She said they needed increased income to keep up with costs in their old age. In a January 2007 statement (also received in April 2007), the Veteran said he was in an accident in June 1946. He said he was treated at the 80th medical facility along with the three other soldiers in the accident. He said he was in the 5th Army located outside of Livorno, Italy (also known as "Leghorn" Italy). He stated that after his discharge he was treated at Sinai Hospital located in Detroit, Michigan for pain and suffering. In his notice of disagreement, the Veteran again stated he was injured in June 1946 in Livorno, Italy (near the Leaning Tower of Pisa). He claimed he was taken to the hospital dispensary for two weeks. He also said he never complained about his neck because he could cope with the pain. He said he had not filed a claim for 50 years because he was very stubborn. In September 2007, a statement from SY was submitted. SY remembered getting a letter in the mid-1940s that stated the Veteran was in a vehicle accident. SY did not state who the letter was from. SY stated that he or she did not remember what, where, or how the accident happened. SY stated it was a long time ago. SY did not identify him or herself in the letter or explain how he or she knew the Veteran. In his October 2007 appeal, the Veteran directed attention to "med station stay in Italy from October 1945 to November 1945" for injuries he received in a car accident. In March 2009, he submitted another statement asserting that when he was in Italy, he went to the dispensary for all injuries. In April 2011, the Veteran stated again that he was in an accident in Italy. He said that he went to an aid station. He was 85 years old and it was very frustrating for him to have to remember what happened in June 1946. On a second page, he questioned whether he could remember an accident "in June of 1944 or 1945." He remembered they were delivering body bags and were in a command car. He went to the aid station. He was young and did not want to make "a big issue" about it. He said he had spine trouble since service and complained to doctors Kantor and Sills. He said he also recently had an accident in his garage when he lifted a heavy object and sneezed; he said he "re-injured" his neck and upper back. Service treatment records do not show treatment for, a diagnosis of, or complaints of a neck injury. A June 1945 induction physical examination showed no musculoskeletal defects. His scar from a past appendectomy in 1930 was noted. He received dental treatment in 1945. The December 1946 separation examination showed no musculoskeletal defects. The area addressing injuries or diseases is left blank as none were reported. The only thing noted was an appendectomy scar (well-healed, existed prior to service). The Veteran's separation qualification record (covering June 1945 to February 1947) shows the Veteran served as supply clerk and was in charge of shipping. His enlisted record and report of separation showed he was outside the United States from November 30, 1945 to December 24, 1946. In February 1952, the Veteran filed a dental claim. He stated that he had a dental disease or injury in service. More recent medical evidence shows the Veteran has current neck symptoms and diagnoses. An August 2006 record from Dr. Hanna showed that the Veteran complained of neck pain and gave a history of "having had a neck injury as a young man" and had occasional aches. Most recently he was carrying a heavy object and sneezed. He had sharp pain in the posterior cervical area. He continued to have discomfort even after taking a pain reliever. Physical examination revealed minimal limitation and mild tenderness. The assessment was probable cervical strain in a patient with underlying chronic cervicalgia. An August 2006 record from Dr. Hanna showed that the Veteran had evidence of degenerative joint disease, but no radiculopathy or radiation of pain. X-rays from the same month showed an impression of multilevel degenerative disc disease with spondylitic changes. There was mild bilateral neural forminal narrowing due to bony encroachment. There was also mild multilevel facet degenerative change. There was no acute fracture or misalignment. An October 2007 physical therapy record showed the Veteran reported symptoms of cervical pain that had started three weeks prior. The Veteran complained of pain and limited motion. The Veteran's claim that current neck pain stems from service is problematic since his statements in this regard have been inconsistent. Still, his claim that he had an "event" in service that resulted in neck pain is credible and supported by statements by his brother, SY, and his wife. He has not provided any documentation of post service back pathology that is dated prior to 2006. He should be afforded a VA examination to determine the nature and etiology of any current cervical spine disability. As noted in the October 2012 Joint Motion, the parties agreed that the opinion provided by the July 2011 VA examiner was inadequate for the purpose of adjudicating the claim for service connection. The examiner stated that she could find no record of a neck injury in the service medical records and did not see reports of a neck problem until decades after leaving military service. Without further explanation, she concluded that the Veteran's neck condition was less likely as not due to his military service. The Court has held that 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). Furthermore, an examination is inadequate where the examiner does not review the medical history and provide a factually accurate rationale for the opinions provided in the examination report. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 303-4 (2008). Therefore, upon remand, the Board requests that the claim be forwarded to the July 2011 VA examiner to obtain clarification consistent with this remand. If the same examiner is unavailable, the Veteran must be provided with a new VA examination. 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. The claims folder, including this remand and any relevant records contained in the Virtual VA system must be forwarded to the July 2011 VA examiner, if available, in order to obtain clarification as to the rationale behind her opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current cervical spine disability, including cervical spondylosis and degenerative arthritis, had onset in service or is otherwise related to a disease or injury in service. The examiner should then provide thorough reasons for the opinions that specifically take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. As summarized in this document, the Veteran's statements that current neck pain stems from service have been inconsistent. Still, his claim that he had an "event" in service that resulted in neck pain is credible and supported by statements by his brother, SY, and his wife. If the July 2011 VA examiner is unavailable, the case should be referred to another qualified physician to obtain the requested opinion. If further examination is recommended by either examiner, this should be provided. 2. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 3. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. 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 2002 & Supp. 2012). _________________________________________________ THOMAS J. DANNAHER 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).