Citation Nr: 1316099	
Decision Date: 05/16/13    Archive Date: 05/29/13

DOCKET NO.  09-37 119A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for a cervical spine disability.

2. Entitlement to service connection for an acquired psychiatric disorder, to include an adjustment disorder.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel




INTRODUCTION

The Veteran served on active duty from July 2004 to August 2007, including service in Iraq.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision issued in April 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

The Board observes that, in his substantive appeal (VA Form 9), the Veteran limited his appeal to the issue of entitlement to service connection for adjustment disorder.  However, the RO certified both that issue and the issue of entitlement to service connection for cervical strain to the Board.  The Veteran, through his representative, then presented argument with respect to the cervical spine claim in an April 2013 submission.  Therefore, as the appeal of the issue of entitlement to service connection for a cervical spine disability has been treated as perfected, the Board determines that the Board has jurisdiction to adjudicate the claim.  See Percy v. Shinseki, 23 Vet. App. 37 (2009).

In January 2009, the Veteran filed claims for service connection for a sleep disorder and entitlement to total disability rating due to individual unemployability (TDIU).  A VCAA notice was issued for both issues, but the subsequent rating decision only adjudicated the claim for TDIU.  Therefore, the Board refers the claim of entitlement to service connection for a sleep disorder to the RO for appropriate action. 

The issue of entitlement to service connection for an acquired psychiatric disorder, to include an adjustment disorder is addressed in the remand portion of the decision below and is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.




FINDING OF FACT

The Veteran has an undiagnosed illness manifested by cervical spine pain which manifested to a compensable level within one year of discharge.  


CONCLUSION OF LAW

An undiagnosed illness manifested by cervical spine pain was incurred in the Veteran's active duty military service.  38 U.S.C.A. § 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.317, 4.59 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants entitlement to service connection for an undiagnosed illness manifested by cervical spine pain, which constitutes a complete grant of the Veteran's claim.  Therefore, no discussion of VA's duty to notify or assist is necessary with respect to that claim.

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. 
§ 3.303(a).  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).     

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr, 21 Vet. App. at 309.

To qualify for compensation under these provisions, "Persian Gulf veteran" is defined as "a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War.  The "Southwest Asia theater of operations" includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  See 38 C.F.R. § 3.117(d)(1) and (2) (2012).  The Board notes that the Veteran's service personnel records reflect that he was awarded the Southwest Asia Service Medal, demonstrating the required service.

For service members who served in the Southwest Asia theater of operations during the Persian Gulf War who exhibit objective indications of chronic disability manifested by one or more specific signs or symptoms, such disability may be service connected provided that it became manifest during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more provided that the disability cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 501(a) (West 2002); 38 C.F.R. § 3.317(a)(1) (2012).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R.
§ 3.317(a)(3) (2012).  Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6- month period will be considered chronic.  The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  38 C.F.R. 
§ 3.317(a)(4) (2012).

Signs and symptoms which may be manifestations of undiagnosed illness include signs or symptoms involving, but not limited to fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders.  38 C.F.R. § 3.317(b) (2012).

The Veteran contends that he injured his upper back in service during PT and when bending and lifting supplies.  Therefore, he argues that service connection is warranted for a cervical spine disability.  

The Veteran's service treatment records reflect no treatment for back pain.  The Veteran complained in August 2007 separation examination that he had experienced episodic, not limiting upper back pain.  The clinical examination at separation was normal.

Moreover, there is no currently diagnosed disability of the cervical spine reflected in the claims file.  The Veteran was afforded VA spine and general medical examinations in February 2008.  Neither examiner found any abnormalities of the cervical spine.  The spine examiner indicated that the Veteran had had a cervical spine strain that was now resolved.

However, the Board notes that the Veteran's DD Form 214 reflects that he is a veteran of the Persian Gulf War.  Therefore, he is entitled to contemplation of 38 C.F.R. § 3.317 in adjudication of his claim.  The Veteran has complaints of pain in his upper back/neck, which is not a manifestation of a diagnosed illness.  The Veteran filed his claim during the same month as his discharge; therefore, the disability was present within one year of discharge.  Further, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011).  The minimum rating available for a painful cervical spine disability is 10 percent.  Consequently, the Veteran's cervical spine disability manifested to a degree of at least 10 percent within one year of discharge. 

In light of the above facts, the Board determines that the criteria for service connection for an undiagnosed illness manifested by cervical spine pain have been met.  Therefore, the Veteran's claim is granted. 


ORDER

Entitlement to service connection for an undiagnosed illness manifested by cervical spine pain is granted.


REMAND

A review of the record reveals that a remand of the claim for service connection for an acquired psychiatric disorder to include an adjustment disorder, is necessary.  First, the Board notes that there is a March 2011 VA mental health examination of record, but the claims file does not contain a supplemental statement of the case that considered that examination.  Therefore, the appeal must be remanded to allow for RO consideration of this additional evidence. 

Additionally, the Board observes that the most recent VA treatment record is dated in October 2009 from within the Gainesville VA Medical Center (VAMC).  An October 2009 mental health consult indicates that the Veteran was diagnosed with insomnia, adjustment disorder, alcohol abuse, and marijuana abuse and was to be scheduled for an appointment with a psychiatrist.  Therefore, there are likely outstanding VA mental health records from within the Gainesville VAMC and dated after October 2009 that should be added to the claims file.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file).  

Accordingly, the case is REMANDED for the following action:

1. Request all VA treatment records from the Gainesville VAMC and all associated outpatient clinics dated from October 2009 forward.  All requests and responses, positive and negative, must be documented in the claims file.

2. After completing the above action, and any other development deemed necessary, readjudicate the issue on appeal.  If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond.

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).

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).



_________________________________________________
ROBERT C. SCHARNBERGER
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).


Department of Veterans Affairs