Citation Nr: 1320032 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-46 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for cervical segmental dysfunction, claimed as neck pain. 2. Entitlement to service connection for arthritis/pain/loss of mobility of the spine. 3. Entitlement to service connection for shoulder pain. 4. Entitlement to service connection a bone spur of the back. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from February 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, that denied the issues on appeal. The RO in Indianapolis, Indiana, has jurisdiction of the Veteran's claims file. 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 A preliminary review of the record indicates that these claims require additional development. The Veteran contends that he incurred the claimed disabilities during combat when he was in a tank commander hatch. The barrel of a M42A1 hit him on the back and knocked him down on ammo boxes. He contends that he sought treatment at a first aid station in Xuan Loc. He was told that neck X-rays were negative, he checked out okay, and he should go back to duty. The Veteran's service treatment records are negative for pertinent complaints, symptoms, findings or diagnoses. They do not include a separation report of medical history that would indicate whether the Veteran reported or denied relevant symptoms at separation. The Veteran's DD 214 provides that his military specialty was automatic weapons, and he trained as an LT (AD) Arty Crewman. He has submitted a copy of an award of the Army Commendation Medal with "V" device. He received the award for May 1970 heroism while serving as a Section Chief on a twin 40 mm duster [self-propelled anti-aircraft gun] under "intense enemy fire" while defending a convoy "under extremes of a combat condition." In light of the foregoing, the Board finds that the Veteran is a combat Veteran as defined by 38 U.S.C.A. § 1154(b). Moreover, the Board finds that the Veteran's claims regarding his injuries while serving in combat are consistent with the circumstances, condition, and/or hardships of his active duty. Id. As a result, the Board finds that the Veteran's claimed injuries occurred during combat. The Veteran implicitly contends that symptoms relevant to the claimed disabilities have continued since separation from active duty. He is competent to so testify. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Private treatment records indicate complaints, symptoms, findings or diagnoses for the lumbar spine, thoracic spine, cervical spine and left shoulder. Since the evidence raises the possibility that the Veteran has the claimed disabilities as a result of injury during active duty, the Board finds that a remand is necessary in order for the RO to obtain VA medical opinions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of any lumbar spine, thoracic spine, cervical spine or shoulder disability that may be present. The claims file must be made available to the examiner. Following a review of the relevant medical evidence in the claims file, the medical history (including that set forth above), and the results of the clinical evaluation and any tests that are deemed necessary, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any lumbar spine, thoracic spine, cervical spine or shoulder disability is causally related to the Veteran's combat injury described above, or is otherwise related to active service. The examiner is requested to provide a rationale for any opinion expressed. 2. Then, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. 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). _________________________________________________ MICHAEL MARTIN 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).