Citation Nr: 1314670 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 12-35 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for headaches, to include as secondary to a cervical spine disability. ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2002 to September 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which denied the benefits sought on appeal. 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 on his part. REMAND The Veteran's claims require further development before being decided on appeal. Although the Board sincerely regrets the additional delay in deciding these claims, a remand is needed to ensure procedural due process and that there is a complete record upon which to decide these claims so he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran contends he has a cervical spine disability as a result of his active duty service. He asserts that although there was no one incident which caused this disability; he attributes it to his in-service duties, which included moving boxes and equipment in storage and working at a computer. However, the Veteran reported in VA treatment records in 2008 and during his 2011 VA examination that he had neck pain prior to his active duty following a car accident in 1995. The Veteran reported sustaining whiplash and receiving chiropractic treatments to relieve his discomfort from 1995 to 1998. There are no records of this car accident or the subsequent treatment in the Veteran's claims file. As these records may be pertinent to the Veteran's cervical spine claim, VA has an obligation to assist the Veteran in obtaining them. 38 C.F.R. § 3.159(c)(1). Upon remand, the RO should request the Veteran identify the providers of treatment and/or evaluation received following the car accident, and submit the necessary authorizations to allow VA to secure any such records. Additionally, service treatment records (STRs) show the Veteran was treated during service for neck pain. The Veteran contends he sought treatment for his neck once or twice a week for years from Dr. P. while on active duty service, beginning about 2003. The obtained STRs do not show this frequency of treatment. In fact there are only two entries of treatment for neck pain from Dr. P., both in April 2005. As the appeal is being remanded for additional development, the RO should undertake to ascertain if additional STRs (to include the alleged treatment by Dr. P.) are available, and if available to obtain such. Furthermore, the Board notes that VA has an obligation to assist claimants in obtaining evidence, to include relevant records from VA medical care providers. 38 C.F.R. § 3.159. As such, the RO should take this opportunity to obtain any recent VA records relevant to the Veteran's claim that have not yet been associated with the claims file, to include any relevant VA treatment records dating from March 2012. After the additional medical evidence has been obtained, the Veteran should be scheduled for VA examination to determine the nature and etiology of the Veteran's cervical spine disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The April 2011 VA medical opinion provided in connection with an examination did not provide an adequate opinion with respect to aggravation. Specifically, a medical opinion is required to determine whether the Veteran had a disability as a result of the 1995 car accident which pre-existed the Veteran's entrance into service. If there is "clear and unmistakable evidence" that a disability did pre-exist service, then VA must determine whether it is clear and unmistakable that any increase in the pre-existing disorder was due to the natural progress of the condition. The service-connection claim for a headache disorder is inextricably intertwined with the cervical spine claim, because this disability is alleged as due to the cervical spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Thus, adjudication of the headache claim is deferred pending development of the cervical spine disability. Accordingly, the case is REMANDED for the following actions: 1. The RO should ask the Veteran to identify all providers of treatment and/or evaluation he has received for his back and neck following the 1995 car accident, to include records of the chiropractic treatment received between 1995 and 1998, and to provide any authorizations necessary for VA to obtain all outstanding records of any such private treatment/evaluation. The RO should attempt to secure for the record copies of the complete treatment records from the sources identified. 2. The RO must contact the National Personnel Records Center, the Records Management Center, and any other appropriate location, to request any additional service treatment records of the Veteran at the medical facility at Mountain Home AFB in Idaho dated from 2003 to September 2006. Dr. C. R. Pack provided the treatment, which involved neck manipulation. 3. The RO should obtain copies of all relevant VA treatment records dated from March 2012 to the present. Such records must either be printed and associated with the Veteran's paper claims file or uploaded into the Veteran's electronic file contained in the Virtual VA system. 4. After the above development has been completed, a medical opinion, with examination only if deemed necessary, should be provided which addresses the likely etiology of the current cervical spine disability. The claims folders must be made available to the opinion provider. Based on a review of the claims folder and the clinical findings of the 2011 examination, the provider must provide an opinion as to: a. Is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that the Veteran had a cervical spine disability prior to service? Please discuss the significance, if any, of the reported pre-service car accident leading to a whiplash-type injury and any treatment records related thereto. b. If it is clear and unmistakable that the Veteran had a cervical spine disability prior to service, is it at least as likely as not (i.e., is it 50 percent or more probable) that any pre-existing disease underwent a permanent (as opposed to temporary) increase in severity during the Veteran's period of active duty? Please discuss the significance, if any, of the April 2005 service treatment record where the Veteran complained of neck pain and the cervical strain diagnosed in service in August 2006. c. If it is clear and unmistakable that the Veteran had a cervical spine disability prior to service, and it is at least as likely as not that the pre-existing disease underwent a permanent increase in severity during the Veteran's period of active duty, is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that the increase in severity during service was due to the natural progress of the disease? d. If the VA examiner determines that the Veteran's current cervical spine disability did not pre-exist his period of military service, is it as least as likely as not (a 50 percent or greater probability) that the Veteran's current cervical spine disability is related to his period of military service, including the cervical strain diagnosed in service in August 2006. e. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's tension headaches are etiologically related to his period of military service, to include as secondary to any diagnosed cervical spine disability? A rationale for all opinions expressed should be provided. 5. The RO should ensure that the requested development is completed and then re-adjudicate the Veteran's claims with consideration given to any additional evidence added to the claims file. If the Veteran's claims remain denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ M. C. GRAHAM 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).