Citation Nr: 1333704 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-16 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to December 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which, in relevant part, denied entitlement to service connection for arthralgia of the cervical spine. The Veteran and his wife, testified at a videoconference hearing before the undersigned in August 2008. A transcript of the hearing is of record. In August 2011 and April 2013, the Board remanded the Veteran's current claim for further development. In August 2011, the Board referred the issues of entitlement to an increased rating for PTSD and whether clear and unmistakable error (CUE) was committed in a November 2006 rating decision that denied entitlement to service connection for left and right knee disabilities to the Agency of Original Jurisdiction (AOJ) for adjudication. The AOJ has not yet considered these issues, thus they are again referred to the AOJ for appropriate action. This appeal was processed using VA's Veterans Benefits Management System and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of these electronic records. This appeal is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. REMAND The Board previously remanded the Veteran's claim in order to obtain decisions and underlying medical records associated with the Veteran's claim(s) for benefits from the Social Security Administration (SSA). SSA had previously reported that medical records had been destroyed. There was no indication as to whether the SSA's decision on the Veteran's disability claim was available. After the Board remand, SSA again noted, in May and July 2013; that the Veteran's medical records had been destroyed; but provided no information as to the availability of SSA decisions. VA has a duty to continue efforts to obtain records from a Federal agency until they are obtained, or it is reasonably certain that they do not exist or that further efforts would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002 & Supp. 2013). A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the Veteran was afforded a VA examination in September 2011, but the examiner did not consider all of the Veteran's reports of in-service injuries. Accordingly, this claim is REMANDED for the following action: 1. Obtain any SSA decisions with regard to the Veteran's application(s) for SSA disability benefits. Efforts to obtain SSA decisions must continue until they are obtained; unless it is reasonably certain that they do not exist or that further efforts would be futile. If any requested records cannot be obtained, advise the Veteran and tell him of the efforts made to obtain the records and any additional actions that will be taken with regard to his claim. 2. Thereafter, schedule the Veteran for a new VA examination of his cervical spine. The claims file and a complete copy of this remand must be made available to and reviewed by the examiner in association with the examination. The examination report or addendum should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should 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, to include degenerative disc disease and stenosis of the cervical spine, had its onset during active service or is related to an in-service disease, event, or injury, to include either reported incident where the Veteran contended that he suffered cervical spine injury (i.e., falling while disembarking from a bus and falling down the stairs of an aircraft carrier). The examiner should note that the Veteran is competent to report that he suffered an injury to the cervical spine, and his competent to report a continuity of cervical spine symptomatology since his separation from service. The examiner must provide reasons for all opinions. 3. Review the claims file to ensure that the foregoing requested development, including the VA examination, has been completed. If any requested development is not complete, implement corrective procedures. 4. If the claim on appeal remains denied, issue a supplemental statement of the case; then return his appeal to the Board, if otherwise in order. 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. 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. See 38 C.F.R. § 20.1100(b) (2013).