Citation Nr: 1315429 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-39 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for cervical spine disorder. 2. Entitlement to service connection for lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1980 to May 1988. This case comes before the Board of Veteran's Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board also notes that the Veteran's appeal had included the issues of entitlement to service connection for a sinus disorder, rhinitis, tinnitus, bilateral pes planus, and bilateral hearing loss. However, the Veteran did not submit a substantive appeal following the issuance of the August 2010 statement of the case. Accordingly, the issues no longer remain in appellate status, and no further consideration is required. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. 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 contends that he is entitled to service connection for cervical and lumbar spine disorder, as he believes that these disorders had their onset in service. In the alternative, the Veteran alleges that these disabilities preexisted service and were aggravated therein. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to the current appeal, this list includes arthritis. See 38 C.F.R. § 3.309(a). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. The Veteran's service treatment records show that he reported having strained his back five years prior to service as a result of a pre-service fall and sledding accident. He indicated that he had recurrent back pain from the neck to the tailbone in 1981, and a September 1982 report reflects a history of back spam and an assessment of muscle spasm. In April 1983, he reported sustaining an injury to the low back from lifting a drum full of antifreeze, and he was assessed with dorsal myositis secondary to a strain. The Veteran also strained his left shoulder and neck in October 1986. In addition, a February 1987 periodic examination report documents a history of herniated nucleus populsus of the thoracic spine with injury to the lumbosacral spine later, but no diagnosis was available. The April 1988 report of medical history at discharge reflects the Veteran's endorsement of recurrent back pain. Following his discharge from service, the record indicates that the Veteran underwent cervical spine surgery in February 1999 to treat his cervical disc disease C4-C6 with cervical spondylosis. A March 2007 VA outpatient treatment report shows that the Veteran presented with a history of neck pain that began in service. The Veteran also reported that he injured his back prior to service and aggravated the condition moving a barrel of anti-freeze therein. The Veteran also indicated that he experienced continuous cervical and lumbar spine complaints since his period service. An assessment of low back pain, probable degenerative disc and joint disease, and post cervical fusion with degenerative joint and disc disease was noted. The Veteran was referred for VA examination in June 2008 to determine the etiology of the claimed cervical and lumbar spine disorders. The examiner noted that, while "certainly one could have an injury to his neck or lumbar spine which would cause future problems," it would be speculation on his part to relate the Veteran's current back condition to service without x-ray confirmation of cervical or lumbar disease in service. No other rationale for the speculative opinion was provided. The Board notes that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010) (noting that the phrase, "without resort to mere speculation," must not become a mantra that short circuits the careful consideration to which each claimant's case is entitled and holding that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence.) In addition to the inconclusive medical opinion, the June 2008 VA examiner did not address whether the Veteran had a preexisting cervical or lumbar spine disorder, and if so, whether the disability was aggravated by service. Based on the foregoing, the Board finds that a clarifying medical opinion is necessary to determine the nature and etiology of the Veteran's claimed cervical and lumbar spine disorders. The Board notes that the record includes a September 2010 statement showing that, at that time, the Veteran was incarnated with the Texas Department of Criminal Justice. It is unclear as to whether the Veteran is still incarcerated. Therefore, on remand, if it is confirmed that the Veteran is incarcerated, the RO/AMC should follow the VA Adjudication Procedure Manual protocol for scheduling examinations of incarcerated veterans, including (1) attempting to arrange transportation of the veteran to a VA facility for examination; (2) contacting the correctional facility and having their personnel conduct an examination according to VA examination worksheets or (3) sending a VA examiner to the correctional facility to conduct the examination. See M21-1MR, Part III.iv.3.A.11.d. Lastly, the claims file reflects that there may be outstanding VA medical records that may be pertinent to the claims on appeal. In this regard, it appears that the Veteran received treatment at the Dallas VA Medical Center (VAMC). While the claims file currently includes outpatient treatment records from this VAMC dated through September 2009, more recent records of VA treatment may be available. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered 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). Therefore, the RO/AMC should obtain any outstanding VA treatment records dated since September 2009. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain all outstanding pertinent VA treatment records dated since September 2009. The RO should follow the procedures set forth in 38 C.F.R. § 3.159(c) for requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of the Veteran's claimed lumbar and cervical spine disorders. If the Veteran is currently incarcerated, the RO/AMC and/or the local VHA Medical Examination Coordinator should confer with prison authorities to determine whether the Veteran should be escorted to a VA medical facility for examination by VHA personnel or examined at the prison by VHA personnel, prison medical providers at VA expense, or fee-basis providers contracted by VHA. See M21-1MR, Part III.iv.3.A.11.d. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran's service treatment records show that he reported that he strained his back five years prior to service as a result of a pre-service fall and sledding accident. He endorsed recurrent back pain from the neck to the tailbone in 1981, and a September 1982 report reflects a history of back spam and an assessment of muscle spasm. The Veteran also an reported injury to the low back from lifting a drum full of antifreeze in April 1983, and he was assessed with dorsal myositis secondary to a strain. In addition, he strained his left shoulder and neck in October 1986. A February 1987 period examination reflects a history of herniated nucleus populsus of the thoracic spine with injury to the lumbosacral spine later, no diagnosis available. Finally, the April 1988 report of medical history at discharge reflects the Veteran's endorsement of recurrent back pain. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether the Veteran had a cervical and/or lumbar spine disorder that clearly and unmistakably preexisted service. If the examiner determines that a cervical and/or lumbar spine disability preexisted service, he or she should state whether there was an increase in the disability during service. If the evidence reflects such an increase, the examiner should indicate whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. For any current diagnosis of a cervical spine and lumbar spine disorder that was not preexisting, the examiner should opine as to whether it is at least as likely as not that the disorder manifested in service or within one year thereafter or is otherwise related to his military service, to include his symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The RO/AMC should undertake any other development it determines to be warranted. 4. The RO/AMC should then readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and be afforded an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ JESSICA J. WILLS 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).