Citation Nr: 1325793 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 08-03 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to June 1981 and from June 1982 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The claims file was subsequently transferred to the RO in Albuquerque, New Mexico. 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 Veteran seeks entitlement to service connection for a cervical spine disability. A review of the Veteran's service treatment records reveals that he fell backward in the dark and struck his head on pavement in April 1977, resulting in a diagnosis of cerebral concussion. However, by the time he was examined by medical professionals, his symptoms had completely cleared. In January 1984, the Veteran was diagnosed with a possible compression fracture at C6 after falling from a ladder and striking his head. The Veteran was diffusely tender over the cervical spine and paraspinal muscles, and he exhibited a decreased range of motion in his neck secondary to pain. However, by February 1984, a bone scan was returned negative and the Veteran regained full range of motion in his neck, although he still experienced pain and tenderness on the right side of his neck. A post-service VA treatment note dated in December 2000 indicated that the Veteran sought treatment for a sudden onset of neck pain and pressure. At that time, the Veteran reported both a history of in-service neck injury as well as a 1992 motor vehicle accident which resulted in whiplash. The Veteran exhibited decreased range of motion in the neck as well as tenderness over the bilateral trapezius muscles. The VA nurse practitioner diagnosed him as having neck pain secondary to muscle strain, ruling out degenerative disc disease. However, subsequent magnetic resonance imaging (MRI) conducted in December 2008 revealed degenerative changes most marked at C6-7 resulting in moderate canal stenosis, while X-rays conducted in August 2009 showed slight anterior wedging at C6 and slight narrowing at C6-7 with marginal spurring. The Veteran was provided with a VA spine examination in February 2010, at which time the examiner diagnosed him as having degenerative disc disease of the lower cervical spine. The Veteran claimed that his current cervical symptomatology was at least partially due to an in-service motor vehicle accident. In an April 2010 addendum, the examiner stated that, "since there is no whiplash injury documented in the service in 1984, it is my opinion that current cervical spine condition is less likely as not related to an incident that I cannot document actually occurred." The Veteran was provided with a VA joints examination in February 2011, at which time he was diagnosed as having cervical spine disc repair for degenerative disc disease resulting in non-organic types of complaints. The examiner noted that the Veteran had inconsistent subjective complaints which did not match the objective evidence of record. The examiner stated that tenderness at C7 and non-anatomic arm complaints together with no evidence of motor or sensory upper extremity abnormality indicated a non-organic condition. The examiner opined that there was no evidence showing that the Veteran's cervical spine condition was due to or aggravated by his service-connected bilateral L5 spondylosis. Acknowledging that the February 2011 VA examiner failed to reference the Veteran's two documented in-service cervical spine injuries, the RO scheduled the Veteran for another VA examination. The Veteran was provided with a VA back examination in September 2012, at which time he was diagnosed as having degenerative disc disease of the cervical spine. At that time, the Veteran claimed that he had injured his neck after falling from an aircraft in 1979, at which time he was informed that he fractured his neck. He further reported being involved in a motor vehicle accident in service and experienced subsequent neck pain. The Veteran reported undergoing surgery in September 2010 to correct prior neck injuries, which helped a little. He further reported that he was involved in another motor vehicle accident in August 2011, at which time his head hit the windshield, and that he suffered a fall July 2012. Significantly, the Veteran also reported being physically assaulted in August 2012, only a month prior to the examination, at which time he sustained a brain hemorrhage, jaw fracture, nose fracture, loss of teeth, spine injuries, and a left hand fracture. As a result, the September 2012 VA examiner explained that she could not complete the examination due to the Veteran's recent severe injuries and was therefore unable to opine with respect to conflicting medical evidence of record without resorting to mere speculation. Nonetheless, the examiner indicated that a review of the Veteran's service treatment records showed a different history than that presented by the Veteran at the examination, and that treatment records with respect to his most recent injuries were not associated with the claim file for review. In a September 2012 addendum, the examiner indicated that she could not answer questions regarding radiculopathy due to the Veteran's recent severe head trauma and subdural and subarachnoid brain hemorrhages. As such, the September 2012 VA examination is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). Indeed, as the Veteran's representative indicated in his March 2013 VA Form 646, an inadequate examination frustrates judicial review. Rather than reschedule the Veteran for another VA examination after his injuries had sufficiently healed, the RO issued a supplemental statement of the case and continued its denial of the claim. As it has now been nine months since the August 2012 physical assault that prevented the VA examiner from completing an examination and rendering a thorough opinion, the Board finds that the Veteran should be afforded a new examination consistent with the RO's September 2012 request for a VA opinion. In addition, the September 2012 VA examiner emphasized that treatment records with respect to the Veteran's most recent injuries (July 2012 fall, August 2012 physical assault) were not associated with the claims file for review. Indeed, the most recent VA records associated with the claims file are dated in April 2012. Part of VA's duty to assist is obtaining records within its constructive possession. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Remand is required so that additional records may be obtained and a new VA spine examination may be conducted. The Veteran also seeks entitlement to service connection for bilateral hearing loss. With respect to both claims, the Board notes that the Veteran has submitted a favorable Social Security Administration (SSA) decision dated in January 2011 which found him to be under a disability as defined in the Social Security Act since June 2003. However, the Veteran only submitted the decision itself, and not any of the treatment records and/or information relied on by the SSA in rendering this decision. Significantly, while the January 2011 decision acknowledged that state agency medical consultants conducted physical assessments of the Veteran during the development of his SSA claim, and that the Veteran had a "panoply of physical impairments," it found that it was unnecessary to analyze the extent of the Veteran's physical impairments in its decision, as his mental impairments alone were sufficiently disabling. Nonetheless, records held by the SSA, particularly the physical assessments referenced in the January 2011 decision, may help the Veteran substantiate his claims. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). On remand, efforts to obtain the SSA records must be made until the records are either obtained or it is determined that the records do not exist or that continuing efforts would be futile. 38 U.S.C.A. § 5103A; Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify or submit any additional pertinent evidence in support of his claims. Ask that the Veteran provide those records or authorization for those records to be obtained. If authorization is provided, request all outpatient, surgical, consult, and radiology records. Additionally, obtain any existing VA treatment records from the VA Medical Center in Albuquerque, New Mexico and any associated outpatient clinic dated from April 2012 to the present. Document all attempts to secure this evidence in the claims file. If the records cannot be obtained, notify the Veteran in a letter that identifies the unavailable records; briefly explain the efforts made; and describe any further action to be taken with respect to the claims. Give the Veteran and his representative an opportunity to respond. 2. Contact the SSA and request a copy of all materials, to include medical records, related to the Veteran's SSA benefits. Once obtained, associate these records with the claims file. If SSA notifies VA that these records are unavailable, place a copy of this notification in the Veteran's claims file. 3. Schedule the Veteran for a VA examination to determine the probable etiology of any cervical spine disability, to include his diagnosed degenerative disc disease of the cervical spine. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. The examiner must indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran's documented history of cervical degenerative disc disease is directly related to his military service, to include his documented in-service cervical spine symptomatology, or is caused by or aggravated by any service-connected disability, to include bilateral spondylosis of L5. All opinions should be supported by a clear rationale, which should include a discussion of the specific evidence on which the opinion is based. 4. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. After undertaking the development above, and any additional development deemed necessary, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).