Citation Nr: 1332270 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-09 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a neck and upper back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from January 2004 to June 2004, and from June 2006 to May 2007. The RO has verified that he received the Combat Action Ribbon This matter comes to the Board of Veterans' Appeals from a November 2008 rating decision of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office that, in pertinent part, denied the claim for service connection for a neck and upper back disability. The Veteran filed a notice of disagreement in July 2009 and the RO issued a statement of the case that was sent on December 2, 2009. The Veteran's substantive appeal was received February 4, 2009. Under 38 C.F.R. § 20.302(b), the Veteran had 60 days from the date of mailing of the SOC to file a substantive appeal on this issue. The date of postmark is deemed the date of receipt. 38 C.F.R. § 20.305(a) (2013). Because the postmark is not of record, the postmark date is presumed to have been five days prior to February 4, 2009. Id. Hence, the substantive appeal was timely. In addition to the claims file, the Veteran has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. 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 contends that he developed a neck and upper back disability as the result of combat in Iraq. He has been seen for pertinent complaints since close to the time of his discharge from active duty, but it is not clear whether he has neck or upper back disability. An examination is; therefore required. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). In his substantive appeal the Veteran reported ongoing treatment for his disability, but recent treatment records are not in the claims file. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to report the locations of any in-service treatment for neck and upper back disabilities and any such treatment since October 2009. Then take the necessary steps to obtain records of this treatment 2. Obtain all records of the Veteran's VA treatment for neck or upper back disabilities since October 2009. 3. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. The AMC/RO should arrange for an appropriate VA examination for the purpose of determining whether the Veteran has a neck and/or upper back disability that is related to military service. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should offer an opinion as to: (a) Has the Veteran had a neck or upper back disability at any time since May 2007? If so, state the diagnosis or diagnoses. (b) If the Veteran has had a neck or upper back disability at any time since May 2007, is such disability the result of an in-service disease or injury? The examiner should assume that the Veteran sustained an in-service neck or upper back injury in combat. The examiner should provide reasons for the opinions. The reasons should take into account the Veteran's statements regarding the incurrence of his claimed disorders and the continuity of symptomatology. The rationale for any opinion offered should be provided. If the examiner cannot provide an opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 3. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2013). _________________________________________________ Mark D. Hindin 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) (2013).