Citation Nr: 1325167 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 10-46 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for a bilateral hip disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to August 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied service connection for a neck condition and a hip condition. The Veteran testified before the undersigned at an April 2011 Video Conference hearing. The hearing transcript is of record. During the hearing, he submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2012). 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 Under the VCAA, VA is obliged to provide an examination in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran contends that his current neck disability is the result of wear and tear on his body from operating heavy equipment in the military. The Veteran's complete service treatment records are not available for review. See Formal Finding on the Unavailability of Complet Service Treatment Records. However, his DD-214 shows that his military occupational specialty (MOS) was Crane Operator. Thus, the Board finds that the conditions of his service are consistent with his reports of operating heavy equipment in service. 38 U.S.C.A. § 5104(a). The post-service medical evidence of record, which include VA treatment records from the VA Medical Center in Nashville, Tennessee dated from October 2007 to August 2010 show that the Veteran has been diagnosed with degenerative disc disease at C4-C5 and C5-C6. The Veteran's cervical spine (neck) disability is manifested by symptoms that the Veteran is competent to report. The Veteran's reports of neck pain in service and a continuity of symptomatology provide evidence that his current cervical spine (neck) disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). However, contemporaneous evidence of an ongoing cervical spine or neck disability in the years following service is not of record. Accordingly, the Board finds that in light of the Veteran's contentions and the evidence of a current disability that may be related to active military service, a VA examination and opinion are needed to determine whether the Veteran's current cervical spine (neck) disability is related to a disease or injury during active service. 38 U.S.C.A. § 5103A (d) (West 2002). The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). The Board also notes that a July 2011 Report of General Information indicates that the Veteran reported that he had recently had an MRI at the Murfreesboro, Tennessee VA Medical Center, and that he was being referred to a specialist in Nashville for treatment. He requested that the records of his treatment be obtained and considered with his appeal. A February 2012 Report of General Information indicates that the Veteran reported that he was still continuing treatment at the Murfreesboro VA Medical Center, and again requested that the records of his treatment be obtained and considered in his pending appeal. There are no VA treatment records currently associated with the claims file or located in Virtual VA dated after August 2010. As it appears that there may be available VA medical records that are not presently associated with the claims folder, a remand is required. See 38 C.F.R. § 3.159(c)(2). The provisions of 38 C.F.R. § 3.159(c) provide that VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. If VA is unable to obtain such records, VA must provide the claimant with oral or written notice of that fact. The notice must contain various information, including an explanation of the efforts VA made to obtain the records and a description of any further action VA will take regarding the claim. 38 C.F.R. § 3.159(e). Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his bilateral hip and neck disabilities. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. The RO should also obtain any outstanding VA medical records, including any records of treatment at the VA Medical Center in Murfreesboro, Tennessee, which the Veteran reported in July 2011 and February 2012. 2. Then, Afford the Veteran a VA examination to determine the etiology of any current cervical spine or neck disability. The examiner should review the claims folder and note such review in the examination report or an addendum. Any indicated studies should be performed, and the examiner should report all diagnoses pertinent to the cervical spine or neck. The examiner should provide an opinion as to whether it is as likely as not (50 percent probability or more) that any current cervical spine or neck disability is related, in whole or in part, to a disease or injury in service. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report injuries as well as symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. When the development requested has been completed, re-adjudicate the Veteran's claims for service connection based on the new evidence of record. If any benefit sought on appeal is not granted, the agency of original jurisdiction should issue a supplemental statement of the case. The case should be returned to the Board, if otherwise in order. 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). _________________________________________________ F. JUDGE FLOWERS 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).