Citation Nr: 1333651 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-00 402A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for degenerative disc disease of the cervical spine. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran had active military service from February 1958 to January 1987, to include Vietnam service. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Nashville, Tennessee Regional Office (RO). This case was remanded by the Board in March 2013 for additional development. It has now been returned to the Board for review. In addition to the paper claims file, there is an electronic claims file associated with the appellant's claims. A review of the electronic claims file reveals no additional documents pertinent to the current appeal. 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 Board sincerely regrets the further delay to the issue on appeal. However, a review of the record reveals that further action on the claim is warranted. The Veteran is seeking service connection for degenerative disc disease of the cervical spine. He has asserted that he first began experiencing pain in his neck and the back of his head while still in service, and this pain has intermittently continued to the present. In an April 2013 VA examination, he stated that the pain could have been caused by years of jumping out of airplanes. The Veteran's service treatment records reflect complaints in July 1986 of bilateral shoulder and joint pain. In August 1986 the Veteran indicated that neck and shoulder pain had onset gradually and that he had been having the pain for two years. An August 1986 orthopedic clinic record documented the findings of an X-ray report which showed cervical spine osteopenia. The Veteran was diagnosed with possible polymyalgia rheumatism. A November 1986 examination indicated the Veteran did not report any spine problems. The Veteran's private medical records show that he been treated for neck pain since at least 1995. The Veteran's private and VA treatment records include multiple diagnoses related to the cervical spine, including degenerative disc disease, degenerative joint disease, spondylosis, cervicalgia, and cervical sprain. The Veteran has also submitted several statements from former colleagues who attest that they witnessed the Veteran complain of neck pain during and since his time in the service. Because there was evidence of currently diagnosed disability, in-service complaints of neck pain, and an indication that the current disability may be associated with an in-service event, the case was remanded for a VA examination in March 2013. In April 2013 the Veteran was afforded a VA examination. The examiner did not provide any current diagnoses for the Veteran, and also concluded that the Veteran's claimed condition was less likely than not incurred in or caused by the in-service injury, but did not provide any specific rationale for this conclusion. A June 2013 addendum opinion was then provided by a different physician than the one who performed the April 2013 VA examination. The physician was specifically requested to address the Veteran's assertion of continued symptoms since service and to consider him a credible historian to report symptoms. The physician stated that the Veteran's polymyalgia and osteopenia, diagnosed in 1986, did not cause or affect his cervical spine degenerative disc disease because "[t]hese are separate diagnoses and unrelated." The Veteran's assertions were not addressed. Due to the inadequacy of these medical opinions for adjudication purposes, and the failure of the April 2013 examination to provide a diagnosis, the case must be remanded for an appropriate medical examination. The Board points out that where VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for the purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Regarding the rationale, or lack thereof, in the medical opinions discussed above, the Board points out that VA regulations provide that a disability need not be diagnosed during service for service connection to be granted. See 38 C.F.R. § 3.303 (2012). Absent further explanation, a statement that a disability is not due to service simply because it was not shown during service is legally inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Neither the April 2013 report nor the June 2013 opinion provided any rationale concerning the etiology of the Veteran's cervical spine disorders or their likely relationship to service beyond pointing out that the Veteran's service treatment records did not include a diagnosis of cervical spine degenerative disc disease. Furthermore, the April and June 2013 examiners failed to consider the Veteran's pertinent lay statements regarding the onset and continuity of his symptoms. After reviewing the claims file, the Board finds no reason to believe that the Veteran is not a credible and competent witness to his own neck pain. See 38 C.F.R. § 3.159(a) (2013); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (A layperson is competent to report on the onset and continuity of current symptomatology.). The examiners provided no discussion of the Veteran's claims of neck pain during and since service, the supporting statements of colleagues of the Veteran regarding his neck pain, or the private medical records indicating intermittent treatment for neck pain since 1995. Additionally, in March 2013 the Veteran submitted correspondence to VA indicating that he had been receiving continued medical treatment for neck and back pain at the Memphis VA Medical Center. Although the January 2013 supplemental statement of the case indicates that VA treatment records up to January 11, 2013 had been reviewed, there are no VA treatment records dated later than August 2011 currently associated with the paper or electronic claims file. Any outstanding, pertinent VA treatment records dated since August 2011 should be obtained and associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered to be in the constructive possession of VA adjudicators during the consideration of a claim). The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain from the Memphis VA Medical Center all outstanding, pertinent records of medical treatment of the Veteran. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding the requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. After the above has been completed, provide the Veteran with an appropriate examination to determine the nature and etiology of his cervical spine disorder/s. The entire claims file (i.e., both the paper claims file and any electronic medical records that have been added) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. A thorough explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. Based on examination findings, medical principles, and historical records, including available service treatment records, the examiner should identify any current cervical spine disorders found on examination. For each diagnosed disorder, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disorder had its onset during or is otherwise related to the Veteran's military service. In answering the questions above, the examiner must consider the Veteran's competent statements as to the onset and continuity of symptomatology. See Dalton, 21 Vet. App. at 23 (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service medical records to provide a negative opinion). The examiner must additionally specifically address: (1) the July and August 1986 service treatment records, (2) the lay statements provided by the Veteran's former colleagues, and (3) the Veteran's private medical treatment for neck pain from 1995 to the present. The examiner must discuss the rationale of his/her opinion, whether favorable or unfavorable, citing to specific evidence in the record. 3. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the above requested medical report and opinion to ensure that they are in complete compliance with the directives of this remand. If deficient in any manner, implement necessary corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 D. LYON 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).