Citation Nr: 1319693 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 07-12 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to March 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction was subsequently transferred to the RO in Muskogee, Oklahoma. In July 2012, the Board denied the Veteran's claims for service connection for hearing loss, tinnitus, and a lumbar spine disorder. The Board also determined that the Veteran's July 2006 claim for service connection for a "back condition" should have been construed as two separate claims with one for a lumbar spine disorder and the other one for a cervical spine disorder. Because the Veteran had perfected an appeal as to both issues, the Board found that the claim for service connection for a cervical spine disorder was within the Board's jurisdiction. Nevertheless, the issue was remanded in order to provide the Veteran a hearing. In April 2013, the Veteran presented testimony at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the Veteran's Virtual VA electronic claims file. A review of the Veteran's Virtual VA electronic claims file otherwise reveals no additional records pertinent to the issue on appeal. 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 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. In this case, the Veteran's service treatment records include a September 1969 pre-service private chiropractor report reflecting that the Veteran had complained of pain in his neck, head, left shoulder, and low back stemming from a January 1969 car accident. He indicated that his neck pain had worsened and that he was unable to drive a car for any distance because of stiffness in his neck. An x-ray revealed lateral scoliosis of the cervical and upper thoracic spine, and he was diagnosed with acute traumatic cervical myofasciitis of the lower cervical spine. The chiropractor expressed his belief that the Veteran still suffered from injuries and had a permanent disability as a result of his motor vehicle accident, although the extent of the disability could not be determined until further corrective therapy was undertaken. The Veteran's service treatment records include a November 1969 examination report noting the Veteran's complaints that his back and neck were aggravated by bending and sleeping in an awkward position. He had good range of motion without pain or spasm. There was diffuse tenderness to percussion over the entire cervical spine, but there was no tenderness over the major nerve plexuses. The examiner indicated that no pathology was found, and it was felt that the Veteran could serve on a general duty status. The Veteran was subsequently provided a September 1970 induction examination during which his spine was found to be normal. It was noted that his neck and back were cleared by orthopedic consultation in November 1969. The Veteran did report having back trouble on a report of medical history at entrance, and it was noted that he saw a chiropractor. The Veteran's service treatment records reflect that he frequently complained of back pain and that he was put on a limited profile for his back; however, there are no documented complaints or treatment regarding the cervical spine or neck. His cervical spine was also found to be normal during a March 1972 discharge examination. Following the Veteran's discharge from service, VA outpatient treatment records document complaints of neck pain beginning in 2005. A February 2006 report notes a diagnosis of degenerative joint disease of the cervical spine, and a March 2007 physical therapy consultation note reflects that the Veteran reported chronic neck and back pain after he suffered from whip lash injuries from a motor vehicle accident over 15 years earlier. It was noted that he had been receiving treatment since 2003. In July 2007, an assessment of cervical spondylosis, degenerative disc disease, and degenerative joint disease was made. The record also contains independent medical evaluations dated in April 2007 and December 2010 from Dr. H. (initials used to protect privacy). In these reports, Dr. H. indicated that he reviewed the Veteran service treatment records and claims file. After noting the Veteran's pertinent history, he opined that the Veteran's cervical spine disorder clearly and unmistakably preexisted service and was permanently aggravated as a result of his military service. During the Veteran's April 2013 Board hearing, he testified that he injured his neck prior to service as a result of a motor vehicle accident and stated that his neck problems continued to worsen during service as of result of his duties as a heavy equipment operator and the physical stress from lifting duffle bags, marching, and running. He noted that he received treatment in service and saw a chiropractor in Duncan, Oklahoma, immediately after his discharge from service, although records from that treatment provider were not available. Various statements from the Veteran's family members note that the Veteran had neck problems prior to his entrance into service from the motor vehicle accident. They observed that his neck problems worsened as a result of service and have persisted since that time. The Veteran was afforded VA examinations to determine the nature and etiology of his claimed lumbar spine disorder; however, he has not been afforded an examination with respect to his cervical spine. In light of the foregoing, the Board finds that a medical opinion is needed to resolve the claim for service connection on appeal. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 79. In addition, in various written statements, the Veteran indicated that he has been granted disability benefits from the Social Security Administration (SSA). However, the SSA decision and the records upon which that determination was based have not been associated with the claims file. Nor does it appear that any attempt has made to procure them. While the Veteran has indicated that he was awarded these benefits based upon VA outpatient treatment records which may already be associated with the claims file, VA has a duty to obtain SSA records when they may be relevant to a claim. 38 U.S.C.A. § 5103A(c)(3) (West 2002); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). The possibility that SSA records could contain evidence relevant to the Veteran's claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). Therefore, the Board finds the agency of original jurisdiction must have an opportunity to procure these documents on remand. 38 C.F.R. § 3.159(c)(2). Lastly, the claims file reflects that there may be outstanding VA medical records that may be pertinent to the claim 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 March 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 March 2009. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain a copy of the decision to grant or deny SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 2. The RO/AMC should obtain all outstanding pertinent VA treatment records dated since March 2009. The RO/AMC 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. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any cervical spine disorder that may be present. 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, the April 2007 and December 2010 medical reports from Dr. H., and statements from the Veteran and his family members. It should be noted that the Veteran's service treatment records reflect that he saw a chiropractor in November 1969, prior to his entrance into service, with complaints of neck pain stemming from an earlier car accident. He was diagnosed with acute traumatic cervical myofasciitis of the lower cervical spine. However, the Veteran was cleared to enter service as a result of a November 1969 orthopedic consult, and the spine was noted to be normal during a September 1970 induction examination, a;though the Veteran did endorse 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 identify all current diagnoses of a cervical spine disorder. For each diagnosis identified, the examiner should state whether the disorder clearly and unmistakably preexisted service. If the examiner determines that the disorder 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 disorder that did not preexist service, 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. 4. The RO/AMC should undertake any other development it determines to be warranted. 5. The RO/AMC should then readjudicate the Veteran's claim. 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).