Citation Nr: 1323621 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 08-22 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected left shoulder disability. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran testified at a hearing before the undersigned in June 2010. A transcript of that hearing is of record. The Board previously remanded the Veteran's claim for further evidentiary development in August 2010, February 2011, May 2012, and February 2013. In June 2013 and July 2013, the Veteran's representative submitted copies of a May 2013 private cervical spine evaluation report without a waiver of Agency of Original Jurisdiction (AOJ) review. For the reasons described below, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. 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). REMAND Unfortunately, yet another remand is required in this case. Although the Board sincerely regrets the further delay, it is necessary to pursue still additional development to ensure that there is a complete record upon which to decide this claim so that the Veteran is afforded every possible consideration. At the outset, the Board notes that the Veteran's representative - National Association of County Veterans Service Officers - is a local veterans' service organization that has no chapter offices within the Board's headquarters in Washington, D.C. Thus, a request for a waiver could not be obtained by the Board on its own initiative, and a remand to the RO, via the AMC, for the issuance of a supplemental statement of the case is the appropriate procedural remedy. The purpose of this remand is to avoid prejudicing the Veteran's claim, as VA is obligated to adhere to the applicable laws and regulations governing adjudication of claims and appeals which exist to ensure and safeguard the Veteran's right to appellate due process. Additionally, the Board notes that pursuant to its prior February 2013 remand, the Veteran was afforded a new VA examination to determine the nature and etiology of his claimed cervical spine disability in March 2013. The examiner provided the opinion that the Veteran's claimed cervical spine disability was less likely than not incurred during or caused by any claimed in-service injury, event, or illness. The examiner additionally opined that it was much more likely that the Veteran's neck problems were due to many years of his manual labor and the aging process rather than due to an injury to either shoulder or aggravated by either shoulder. Here, however, where new medical evidence has been submitted further evincing the Veteran's contention that he has suffered from neck pain since his time in service, a new etiological opinion should be obtained from the VA examiner that conducted the Veteran's March 2013 VA examination. In seeking this new medical opinion, the Board notes that the Veteran is competent to report experiencing neck pain at the time of his separation from service, he is competent to report receiving treatment for his neck pain shortly after his separation from service, and he is competent to report a continuity of symptomatology of neck pain since his separation from service. See Washington v. Nicholson, 19 Vet. App. 363 (2005). Therefore, on remand, the VA examiner should recognize this lay evidence as potentially competent to support the presence of disability even where it is not fully corroborated by contemporaneous medical evidence. Finally, in an August 2010 letter from the AMC, the Veteran was asked to identify, inter alia, VA treatment that he had received for his claimed neck disability. While the Veteran failed to respond to that request, the Board observes, nonetheless, that the Veteran had reported receiving earlier VA treatment for his claimed neck pain, for which records have not yet been associated with the claims file. Specifically, during his June 2010 Board hearing, the Veteran testified that he began receiving treatment at a VA facility in Newark, New Jersey, for his neck pain in the 1960s. The Veteran's representative indicated that the VA facility was later merged with the VA Health Care System in East Orange, New Jersey. The representative further indicated that he believed the Veteran's earlier VA treatment records should be located with the East Orange facility. Hence, as this claim is being remanded for the foregoing reasons, on remand additional efforts should be made to obtain records of the Veteran's earlier VA treatment for neck pain. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: (Please note, 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. Obtain a complete copy of the Veteran's VA treatment records from the East Orange VA Health Care System, and/or any appropriate custodian facility of records of earlier treatment provided through the VA facility in Newark, New Jersey, dated since the time of the Veteran's separation from service in January 1950. Records of any additional VA treatment rendered since February 2012 should also be obtained from the James J. Howard VA CBOC. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) (2012). 2. Thereafter, return the Veteran's claims file to the VA examiner that conducted his March 2013 cervical spine examination, for a new opinion regarding the determinative issue of the etiology of his claimed cervical spine disability. If, for whatever reason, this examiner is no longer available or able to provide additional comment, then obtain additional comment from another equally qualified examiner. In either eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion. The examiner is asked to again review all pertinent evidence of record, including most especially all evidence received since the prior March 2013 examination, and to provide a new opinion regarding the etiology of the Veteran's claimed cervical spine disability. Specifically, the examiner should address the following: a) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed cervical spine disability had its clinical onset during the Veteran's active service or is related to any in-service disease, event, or injury, to include directly related to his in-service motor vehicle accident. b) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed cervical spine disability was caused (in whole or in part) by the Veteran's service-connected left shoulder disability. c) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed cervical spine disability was aggravated (permanently made worse) by the Veteran's service-connected left shoulder disability. d) Finally, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed cervical spine disability is related to the right shoulder fracture the Veteran's sustained prior to his service. If so, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such cervical spine disability was aggravated (made permanently worse beyond the normal progression of the disease) by the Veteran's service, to include his in-service motor vehicle accident. In providing these opinions, the examiner should specifically address the Veteran's contention that he has experienced a continuity of neck pain symptomatology since his separation from service, that he received private treatment for neck pain shortly after his separation from service, and that he began receiving VA treatment for his neck pain within 10 years after his separation from service. The examiner should additionally address the September 2007 statement provided by the Veteran's private physician, Dr. Goldberg, indicating that he had been providing continuing treatment for the Veteran's neck pain, and the May 2013 private cervical spine evaluation, wherein the Veteran's contentions of suffering from neck pain since the time of his in-service motor vehicle accident are noted. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Finally, readjudicate the Veteran's service connection claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return his appeal to the Board for further appellate review. 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). _________________________________________________ Thomas H. O'Shay Acting 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. See 38 C.F.R. § 20.1100(b) (2012).