Citation Nr: 1337450 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 09-11 061A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a rating in excess of 40 percent for service-connected L-1 burst fracture. 2. Entitlement to service connection for a cervical spine condition. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from February 1981 to April 1985 and December 1985 to March 1988. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2012 the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) via video. A transcript of that hearing is associated with the claims file. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. 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 The Veteran is seeking an increased rating for his service-connected L-1 burst fracture and service connection for a cervical spine condition. Unfortunately the Board finds more development is required on both issues and the appeals must be remanded. First, at his November 2012 video hearing the Veteran reported he had two temporary disability retired list (TDRL) evaluations, the first in April 1989 and the second in July or August 1990. The claims file includes a TDRL evaluation from January 1989, however based on the Veteran's testimony additional TDRL evaluations may be available which would be relevant to the Veteran's claim for service connection. Accordingly the RO/AMC should inquire as to whether any additional records from TDRL evaluations exist, particularly from the summer of 1990. Second, the Veteran also testified he received treatment for his cervical spine condition at the Jefferson Barracks VA medical facility near St. Louis, Missouri from 1996 to 1998. These records are not included in the claims file and would be highly relevant to his claim for service connection for a cervical spine condition. Therefore these files should also be requested upon remand. Third, in a March 2007 written statement the Veteran referenced his current claim for Social Security (SSA) disability. Review of the records does not reveal any attempt has been made to obtain the records from this SSA claim and these records may be relevant to both claims on appeal. Consequently remand is required to obtain these records and associate them with the claims file. Finally, an updated VA examination is required in both appeals. Regarding the Veteran's claim for an increased rating for his service-connected lumbar spine condition his most recent VA examination is from October 2009, more than four years ago. Recent treatment records from 2012 suggest the Veteran's lumbar back condition has gotten worse. Accordingly the 2009 VA examination is outdated and a new examination is required to adequately measure the current severity of his L-1 burst fracture. In regards to his claim for service connection for a cervical spine condition the May 2012 examination provided a negative nexus opinion largely based on the Veteran's lack of complaint regarding his cervical spine prior to 1996. Some of the records requested upon remand are from earlier than 1996. Accordingly if any of these earliest medical records are obtained and associated with the claims file, the RO/AMC should request the examiner to review these newly added treatment records and provide an addendum opinion regarding service connection. Accordingly, the case is REMANDED for the following action: 1. Obtain any additional service treatment and personnel records, particularly pertaining to temporary disability retired list evaluations from 1989 and the summer of 1990. All efforts to obtain these records should be fully documented, and a negative response must be provided if records are not available. 2. Obtain all available VA treatment records, specifically records from the Jefferson Barracks VA medical facility near St. Louis, Missouri from 1996 to 1998. Since such records may pre-date use of electronic records, if no electronic records are available, searches should be made of retired/archived paper records. All efforts to obtain these records should be fully documented, and a negative response must be provided if records are not available. 3. Obtain any records from the Social Security Administration (SSA), to include any award of disability benefits and any underlying records used in reaching the determination. All efforts to obtain SSA records should be fully documented, and a negative response must be provided if records are not available. 4. After obtaining the necessary authorization from the Veteran obtain any updated private treatment records relating to his cervical and lumbar spine conditions, to include any records from Dr. Henry Eiserloh since May 2012. 5. After obtaining the above medical records and associating them with the claims file, provide the Veteran with a VA examination regarding his lumbar and cervical spine conditions. The examiner review the Veteran's full claims file and a complete rationale should be provided for any opinion expressed. Consistent with the medical evidence the examiner should address the following question: Is it at least as likely as not (50 percent or greater) that the Veteran's current cervical spine condition either began during, or was otherwise caused by, his military service, to include his in-service parachute accident in 1986? 6. After completing all of the foregoing, readjudicate the appeal in light of all the additional evidence added to the record. If the claims remain denied provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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). _________________________________________________ MICHELLE L. KANE 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).