Citation Nr: 1317843 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 11-18 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a cervical spine disability, including residuals of a fractured vertebra (cervical spine disability). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active service from April 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In July 2012, the Veteran testified at a Board videoconference hearing before the undersigned Veterans' Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. 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 The Veteran contends that he currently has residuals of a cervical spine fracture resulting from an injury incurred during a 1943 in-service training exercise at the University of Arizona when he struck his neck and head into the bank of a ditch. Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A review of the Veteran's treatment records does not show treatment for head or neck injuries, nor does it show complaints of cervical spine symptomatology or diagnosis of a cervical spine disorder. In examinations conducted in October 1942 and May 1945, the Veteran was found to be physically qualified for service. His bones and joints were within normal limits, except for asymptomatic pes planus. Similarly, in December 1945, the Veteran was examined and found physically qualified for separation from service. The only defect noted at that time was pes planus. As such, there is no evidence of a chronic cervical spine disability in service. However, although the Veteran concedes that he did not seek treatment for a cervical spine disability while in service, he claims that he first sought treatment in 1946 with his private physician in Lincoln, Nebraska, following his separation from service. He claims that he has been suffering from headaches and neck pain since the 1943 incident. Pursuant to the Board's November 2012 Remand instructions, the Veteran was provided with a VA examination in November 2012, at which time he was diagnosed as having cervical strain with moderate, multilevel degenerative spondylosis of the cervical spine. X-rays revealed moderate, multilevel degenerative spondylosis with no acute osseous abnormalities. However, the examiner opined that it was less likely than not that the Veteran's current cervical spine disability was caused by his active duty or that it continued since service. The examiner explained that the Veteran reported multiple possibilities for a neck injury, including diving headfirst into a bank, wrestling, running, and boxing. Significantly, the medical records did not support chronicity of neck pain, nor did they support an in-service neck injury. The separation examination was silent for neck problems. The examiner also opined that it was less likely than not that any arthritis of the cervical spine manifested itself to a compensable degree in the first year following service. The examiner's rationale for this conclusion was that, "Veteran reports that he never required evaluation by a physician for his neck." However, this conflicts with the multiple times in the record, including at his July 2012 hearing, in which the Veteran explicitly indicated that, although he did not seek treatment for a cervical spine disability while in service, he sought treatment for his neck in 1946 with his private physician in Lincoln, Nebraska, following his separation from service, at which time he was informed that he injured a vertebra in his neck. As the examiner's opinion regarding this claim was based on an inaccurate factual premise, the Veteran should be provided with a new examination. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided). Accordingly, the case is REMANDED for the following action: (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. If possible, the same examiner who examined the Veteran during the November 2012 VA examination should be afforded another opportunity to clarify and expand upon his opinion. The Board emphasizes that a detailed rationale for the opinion is necessary. Specifically, the examiner is asked to opine as to whether it is at least as likely as not (50 percent probability or more) that any arthritis of the cervical spine manifested itself to a compensable degree in the first post-service year. In doing so, the examiner should note that the Veteran separated from service in December 1945, and address the Veteran's claim of treatment for and diagnosis of a cervical spine disability by a private physician in Lincoln, Nebraska, in 1946. 2. If, and only if, the same examiner is no longer available to expand upon his opinion from the November 2012 VA examination, the Veteran should be provided a new VA examination to ascertain the nature and likely etiology of the Veteran's cervical spine disability. The RO/AMC must make certain that the Veteran is provided a VA examination on a day and at a location that he can appear for, as the Veteran lives half the year in Nebraska and half the year in Arizona. The relevant documents in the claims file, to include service treatment records, should be made available to and reviewed by the examiner in connection with the new examination. Any tests deemed medically advisable, to include cervical spine X-rays, should be accomplished. The examiner should clearly address the following: a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's diagnosed cervical strain with moderate, multilevel degenerative spondylosis of the cervical spine was caused by his active duty or has continued since service. b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's diagnosed degenerative spondylosis of the cervical spine manifested itself to a compensable degree in the first post-service year. In doing so, the examiner should note that the Veteran separated from service in December 1945, and address the Veteran's alleged treatment for and diagnosis of a cervical spine disability by a private physician in Lincoln, Nebraska, in 1946. 3. Readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative, and give them an appropriate period of time in which to respond. Thereafter, return the appeal 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). _________________________________________________ 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).