Citation Nr: 1316148 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 05-21 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a neck disability, to include as secondary to a service-connected low back disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from June 1993 to January 1998. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois that denied service connection for a neck disability. In April 2009, this matter was remanded by the Board for further development. During the course of the appeal, the Veteran's claims file was transferred to the RO in Jackson, Mississippi. The Board considered and denied the Veteran's claim in February 2011. He appealed that determination to the United States Court of Appeals for Veterans Claims (Court). The Veteran averred that remand was required because the VA examination report was insufficient, among other things. In a September 2012 Order, the Court vacated the Board's decision and remanded the matter. A copy of the Court's Order in this matter has been placed in the claims file. 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. REMAND The Veteran contends that he has a neck disability that is related to his service. Specifically, he contends that his current neck problems arose in October 1994 when he was involved in an in-service motor vehicle accident in which he injured his neck and back. The Veteran's service treatment records reflect that he was hospitalized in late October and early November 1994 for injuries sustained in a motor vehicle accident in which he "bumped the back of his head and blacked out." While his service treatment records indicate that the Veteran was treated for memory problems, shortness of breath, and lower back pain, those records do not show specific complaints or clinical findings related to the neck. A November 1994 CT scan was negative for hemorrhages, fractures, and neurological abnormalities. Subsequent service treatment records reflect occasional treatment for memory problems and lower back pain, which the Veteran attributed to the October 1994 motor vehicle accident. Those records also show that in March 1996, he informed service medical providers that he was receiving "off-and-on" treatment from a civilian chiropractor "with good results." His service treatment records are otherwise negative for any complaints, diagnoses, or treatment related to the Veteran's motor vehicle accident injuries. Nor do those records contain other evidence of neck problems. VA medical records dated from May to November 2005 reflect that the Veteran was treated for complaints of neck and lower back pain and tenderness, which were exacerbated by sitting, standing, bending, and lying down. On range of motion testing in August 2005, the Veteran displayed cervical spine flexion that fell within normal limits but was accompanied by discomfort in the neck region extending into the left trapezoid. It was noted that the Veteran flexed with his "head forward and to right rather than true flexion." He was diagnosed with primary joint dysfunction in the cervical region, with no evidence of neurological involvement. A VA medical record dated in November 2005 indicates that the Veteran was advised to return to the chiropractic clinic for follow-up visits on an as-needed basis. The Veteran was afforded a VA spine examination in April 2006, regarding his low back disability claim. At that time, the Veteran reported that his low back problems had their onset in the in-service motor vehicle accident in which he sustained a concussion and back and neck injuries. However, that report did not contain any clinical findings with respect to his neck. Nor did the VA examiner render an opinion regarding the etiology of any current neck problems. Accordingly, in April 2009 the Board remanded the Veteran's claim for an opinion as to whether his neck disability was related to his service. Pursuant to the Board's April 2009 remand, the Veteran was afforded a VA spine examination in November 2009, at which time he presented with a history of a neck injury secondary to an in-service motor vehicle accident. An X-ray examination of the cervical spine was negative for any abnormalities. The impression was that an examination of the Veteran's neck was without objective evidence of impairment at that time. The examiner opined that the Veteran appeared to be a credible historian, but could not identify any objective evidence that he has a neck disability which is the direct and proximate result of the service-connected motor vehicle accident based upon the available evidence of record. Upon review of the records, the examiner was unable to find any documentation of a neck injury in his service treatment records and opined that it is less likely as not that the Veteran has a neck disability which is the direct and proximate result of the service-related motor vehicle accident. In the absence of supportive medical evidence, to opine otherwise would be resorting to mere speculation. The examiner also opined that there was no medical evidence of record which would support the contention that the Veteran's current neck disability was either caused by or aggravated beyond its natural progression by his service-connected low back disability. The Board recognizes that the November 2009 VA examiner determined that there was no objective evidence that the Veteran has a neck disability. However, the record shows that he had been previously diagnosed with a primary joint dysfunction in the cervical region, with no evidence of neurological involvement in August 2005. The CAVC order dated September 2012 indicates that the Veteran should be afforded an additional VA examination with consideration of the Veteran's in-service accident and his current contentions. Thus, such should be accomplished on remand. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to with a physician determine the nature of his neck disability and to obtain an opinion as to whether such is related to active service or a service-connected disability. The claims file including a copy of this remand must be made available to, and be reviewed by, the examiner. The examiner should additionally review relevant medical records found in the CAPRI system and/or the Veteran's Virtual VA folder. The examiner should indicate such review in the examination report or in an addendum. Any objective testing deemed necessary by the examiner should be performed. Following review of the claims file and examination of the Veteran, the examiner should indicate an opinion as to whether there is a 50 percent or better probability that the Veteran's current neck disability is related to active duty or is secondary to or aggravated (made permanently worse beyond its natural progression) by his service-connected back disability. If aggravation is found, the examiner should identify the baseline level of disability prior to such aggravation, considering earlier medical evidence of record as a point of comparison, and also considering the Veteran's statements as to current and past symptoms. The examiner should provide a rationale for this opinion. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that the Veteran's reports must be considered in formulating the requested opinion. 3. Readjudicate the claim, considering all evidence of record obtained since the prior SSOC. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond. The Veteran 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). _________________________________________________ JAMES A. MARKEY 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).