Citation Nr: 1336385 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 08-36 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Veteran represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. In a January 2012 decision, the Board denied service connection for a cervical spine disability and remanded the issues of entitlement to service connection for posttraumatic stress disorder (PTSD) and respiratory disability. The Veteran appealed the January 2012 denial of service connection for a cervical spine disability to the United States Court of Appeals for Veterans Claims (Court). In June 2013, the Court issued a Memorandum Decision (single judge) setting aside the January 2012 denial of service connection for a cervical spine disability. It remanded the claim for action consistent with its decision. The Board notes that the service connection claims for PTSD and respiratory disability have yet to be recertified to the Board. As such, the only issue currently before the Board is the cervical spine issue noted on the cover page of this decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In light of the Memorandum Decision and review of the claims file, the Board finds that further development is necessary regarding the service connection claim for a neck disability. The Court indicated that the Board failed to address positive evidence in its January 2012 decision denying service connection for a cervical spine disability. The Court pointed to a May 1986 examination report showing a "probable old minimal compression deformity" in the cervical spine, and found that the Board failed to properly address this report in its decision. The Court vacated the Board's decision but cautioned it to not make its own medical determination as to whether the 1986 findings are at least as likely as not related to service. See Colvin v. Derwinski, 1 Vet.App. 171 (1991). Additionally, the Court noted that the Veteran could request that VA attempt to obtain any available Air Force reports related to his alleged in-service automobile accident. In an October 2013 statement, the Veteran requested VA's assistance in obtaining these records and that he should be afforded a VA examination to determine the nature and etiology of his claimed cervical spine disability. The Board finds that the minimal threshold for a VA examination has been met pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006), and the Veteran should be scheduled for a VA examination to determine the nature and etiology of his neck disability. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain Air Force records from the appropriate source(s) related to the Veteran's alleged in-service automobile accident in 1965. Document all attempts to retrieve these records in the claims file. 2. After the above evidence is obtained, to the extent available, schedule the Veteran for appropriate VA examination for his claimed cervical spine disability. The claims file, and any pertinent evidence in electronic format, should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a complete history from the Veteran, and conducting a physical examination and all necessary diagnostic testing, the examiner should render an opinion as to whether it is at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran has a neck disability that has been caused or aggravated by his military service. The examiner is asked to specifically comment on the May 1986 report showing a "probable old minimal compression deformity of the anterior superior corner of the C4 vertebral bodies associated with a small spur," and other clinical treatment records showing post-service injuries. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. The RO should complete any additional developmental steps warranted by the evidence and then readjudicate the Veteran's claims. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL LANE 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).