Citation Nr: 1318605 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-41 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 2002 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The issue of entitlement to service connection for posttraumatic stress disorder (PTSD) was also denied in the January 2009 rating decision. The Veteran perfected an appeal as to that denial. However, the Veteran was granted service connection for PTSD in a November 2010 rating decision. Therefore, that issue has been resolved and is not before the Board. Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the claim can be reached. The Veteran claims that he has a neck disability secondary to his service-connected lumbar spine disability. Specifically, he contends that he his neck disability was caused or aggravated by his low back injury in service and two deployments to Iraq. The Veteran's service medical records show that the Veteran sustained an injury to his low back in 2003 when he fell and strained his lower back. A May 2005 report of medical examination prepared for a medical board proceeding does not include any reference to a neck disability. A May 2005 Physical Evaluation Board Proceeding indicates that the Veteran was discharged due to the low back disability. The records do not show any complaints related to the Veteran's neck. Post-service treatment records from VA indicate that the Veteran sought treatment for neck and shoulder complaints in February 2009. The Veteran was assessed with pain in the left C7-T1 dermatome and numbness on and off. The initial injury was noted to be at work in 2007, after the Veteran separated from service. X-rays of the cervical spine obtained in February 2009 revealed straightening of normal cervical lordosis. In initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 C.F.R. § 3.159(c) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not been afforded a VA examination to determine the etiology of his claimed neck disability. A VA examination should be obtained in order to ascertain the etiology of the claimed neck disability. Associated with the claims file are VA outpatient treatment reports dated through August 2010. Any treatment reports dated after August 2010 should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records dated since August 2010. All attempts to obtain the records must be documented and any negative responses should be associated with the claims file. 2. Schedule the Veteran for a VA examination with an examiner with expertise in treating disabilities of the spine to determine the etiology of his claimed neck disability. Any indicated tests should be accomplished, to specifically include X-rays. A complete rationale for all opinions must be provided. The examiner should review the claims file and should note that review in the report. The examiner should consider the Veteran's treatment for a low back injury in service and his report of neck symptomatology related to the injury. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that any disability of the neck was caused or aggravated by service, including the injury to the low back? (b) Is it at least as likely as not (50 percent or greater probability) that any neck disability was caused by the service-connected lumbar spine disability? (c) Is it at least as likely as not (50 percent or greater probability) that any neck disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected lumbar spine disability? 3. Then, readjudicate the claims. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ HARVEY P. ROBERTS 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).