Citation Nr: 1336254 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-31 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a cervical spine disorder, claimed as a right neck and shoulder disorder with associated nerve damage of the right upper extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M.Clark, Counsel INTRODUCTION The Veteran served on active duty from November 1979 to July 1984. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. Jurisdiction over the entire matter was subsequently transferred to the RO in Cleveland, Ohio. The Veteran testified before a Decision Review Officer (DRO) in January 2011 and before the undersigned Veterans Law Judge (VLJ) in December 2011. Copies of the transcripts are of record. The Board additionally notes that although an October 2010 statement of the case listed the issue of a compensable rating for residuals of a fracture of the right 3rd metatarsal, a substantive appeal was not filed with respect to this issue. Therefore, the Board concludes that this increased rating claim is not currently on 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 Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 ); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Veteran attributes his cervical spine disorder to his duties as a satellite microwave operator in service. He testified at his December 2011 Board Hearing that as a satellite microwave operator he had to put up antennas and doing this repeatedly throughout his service caused wear and tear on his body. See BVA Hearing Transcript (T.) at 4. He testified that although there was no specific injury in service, the repetitive, heavy lifting caused injury to his cervical spine area. See BVA T. at 7. Service treatment records do not reflect treatment or complaints associated with a cervical spine or shoulder disorder. A separation examination reflected a normal clinical evaluation of his neck and upper extremities. Current treatment records reflect that the Veteran has been receiving treatment for cervical spine osteoarthritis. The Board notes that post-service treatment records reflect that the Veteran has suffered two work-related accidents in March 1999 and May 2004. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). The Board has considered a January 2011 medical opinion from the Veteran's private treating practitioner which relates the Veteran's cervical spine disorder to service. However, rationale was not provided. Rather, the opinion was conclusory. Additionally, the Board has reviewed a December 2011 opinion from his private treating physician relating his cervical osteoarthritis and cervical radiculitis to service. Once again, no rationale was provided. The Court has held that to have probative value, a medical examination submitted to the Board 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, 300-1 (2008); see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusions with an analysis that can be considered and weighed against contrary opinions). Here, as noted, no rationale was provided with the positive opinions provided. On remand, the Veteran should be accorded a pertinent VA examination that provides an opinion with supporting rationale. The Board notes that records in the claims file reflect that the Veteran has received Worker's Compensation benefits for injuries related to his cervical spine. The Veteran should be asked to provide any and all documentation, including worker's compensation records, related to this work-related cervical spine injury. Moreover, the claims file reflects that the Veteran has received medical treatment through the Louis Stokes Cleveland VA Medical Center. However, the claims file only contains VA treatment records dated up to May 2011. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file any additional outstanding VA records. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO should contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his cervical spine disorder. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. Regardless of whether or not the Veteran responds, the AMC/RO must obtain the Veteran's treatment records from the Louis Stokes Cleveland VA Medical Center dated from May 2011 to the present. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. In addition, the Veteran is asked to provide any and all documentation, including worker's compensation records, pertaining to his work-related injuries in March 1999 and May 2004. In particular, the Veteran should provide, or authorize VA to obtain, any such pertinent private records, which are not already of record. If these records cannot be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2013). 2. After the above development has been completed and all outstanding records have been associated with the claims file, the Veteran should be scheduled for a VA spine examination. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. The examiner should render an opinion as to: Whether it is at least as likely as not (a 50 percent probability or greater) that any current cervical spine/shoulder disorder, had its onset during the Veteran's active service or is otherwise causally related to his service. The VA examiner is asked to comment on the January 2011 and December 2011 private opinions submitted by the Veteran. Rationale for all requested opinions shall be provided. Citation or discussion of medical authority used in rendering any opinion would be helpful as well. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Upon completion of the above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 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) (2013).