Citation Nr: 1337502 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-18 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for a neck and head disorder claimed as due to VA medical treatment. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active military service from October 1963 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file (an electronic data-based system) associated with the Veteran's claim. This was reviewed by the Board. 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 Regrettably, a remand is needed for further evidentiary development for the Veteran's claim on appeal. The Veteran contends, in essence, that VA medical personnel caused him to develop a neck and head disorder as a result of chiropractic treatment provided in June 2007. See January 2008 VA Form 21-4138. See also VA Form 21-4138, dated in September 2008. He added that one week after this June 2007 treatment he was unable to move his head more than 10 degrees to the left or right, or 20 degrees up and down before experiencing an "electric pain" in his cervical spine and neck region. Id. Review of the Veteran's VA medical records dated in 2003 and 2004 shows that the Veteran complained of neck pain and weakness. The Veteran was seen on June 11, 2007, where the provided diagnoses included chronic neck pain, cervical degenerative disc disease, and findings consistent with facet and myofascial pain. A May 2007 X-ray was noted to show progressive degenerative bony changes. Two days later (June 13, 2007) the Veteran reported a 50 percent improvement, with decreased pain and increased flexibility. He added he was satisfied with the current outcome and requested to have no further follow up treatment. Later, in November 2007, a VA physical therapy outpatient consult note shows that the Veteran complained of right cervical pain. He added he was unable to turn his head. January and February 2008 VA physical therapy outpatient notes also show continued complaints of cervical spine pain. A private X-ray report, dated in September 2009, shows findings of several cervical spine-related disorders, to include degenerative osteoarthritis and intervertebral disc space narrowing. A private Atlas Orthogonalist (licensed Doctor of Chiropractic), E.C., as part of a September 2009 letter, indicated that he first consulted the Veteran earlier in September 2009. The letter indicated that the Veteran reported hearing a "popping" sound in his neck during the above-cited June 2007 VA outpatient treatments. The Veteran also claimed that an assistant of the VA treatment provider in June 2007 used an incorrect manipulation technique. Other VA outpatient treatment records, dated in 2010 and 2011 (and included in Virtual VA), note that the Veteran reported continuing treatment with a chiropractor. It is not clear to whom the who the Veteran was referring. In order to warrant compensation under 38 U.S.C.A. § 1151, the Veteran must demonstrate that the VA medical treatment in question resulted in an additional disability and that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. VAOPGCPREC 40-97. To determine whether the Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b) (2013). For claims received on or after October 1, 1997, as in the instant case, the claimant must establish actual causation. To meet causation requirements based on additional disability, the evidence must show that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused the additional disability, or that the proximate cause of the additional disability or death was an event that was not reasonably foreseeable. With regard to the former element, it must be shown that VA's care, treatment, or examination caused the Veteran's additional disability and VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished such VA care, treatment, or examination without the Veteran's informed consent. 38 C.F.R. § 3.361(c), (d) (2013). The evidence of record is currently insufficient for the Board to render a decision as to this matter. No medical opinion has been obtained for the § 1151 claim, specifically whether the Veteran sustained an additional disability to his head and/or neck as a result of VA medical care, whether any such additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in performing the treatment in question, and whether the proximate cause of any neck and/or head-related additional disability was an event which was not reasonably foreseeable. (For 38 U.S.C.A. § 1151 claims filed on or after October 1, 1997, as in this case, and as noted above, a veteran must show that the VA treatment in question resulted in additional disability and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151.) Inasmuch as there is no medical opinion of record that addresses the medical issues raised with respect to this 38 U.S.C.A. § 1151 claim, an examination is necessary prior to final appellate review. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, a VA examination and opinion is needed by an appropriate specialist to assist the Board in making this determination. See Colvin v. Derwinski, Vet. App. 171, 175 (1991) (holding that the Board is not competent to substitute its own opinion for that of a medical expert). Additionally, it appears that the Veteran receives continuous treatment from both VA medical facilities as well as, possibly, private chiropractic professionals. The most recent VA outpatient medical records of record are dated in March 2012. Thus, pertinent ongoing treatment records, not yet associated with the evidentiary record, should be obtained and associated with the claims folder on remand. The Board also notes that the Veteran is shown to have informed VA medical personnel that he had applied for Social Security Administration (SSA) disability benefits. See December 2008 VA outpatient addendum. The nature of any specifically-cited disorder(s) was not named. Records from the SSA have neither been sought nor associated with the Veteran's claims folder. VA has a duty to obtain any relevant records obtained or developed in conjunction with a SSA claim. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) ("As long as a reasonable possibility exists that the records are relevant to the Veteran's claim, VA is required to assist the veteran in obtaining the identified records."). The Board also notes that VA must obtain SSA decisions and records which may have a bearing on a Veteran's claim. Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). In this regard, the Board notes that, "[i]n the context of the duty to assist in obtaining records, the relevance of the documents cannot be known with certainty before they are obtained." Hyatt v. Nicholson, 21 Vet. App. 390 (2007). As such, pursuant to this remand, and in an effort to develop additional evidence concerning the claim now before the Board on appeal, an effort should be made to clarify if records pertaining to the Veteran, including decisions and medical records, are available. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain and associate with the claims file all VA treatment records not already obtained dated from March 2012 to the present. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If the records are unavailable, the claims file must be properly documented and the Veteran so informed in writing. 2. The RO/AMC should seek to obtain all records associated with private treatment/examination - to include from the private chiropractor E.C. -- provided the Veteran for his neck and head which have yet to be associated with his claims folder. To assist in acquiring these private medical records, provide the Veteran a copy of VA Form 21-4142 (Authorization and Consent to Release Information). Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(1). If the records are unavailable, the claims file must be properly documented as to the unavailability of these records, and the Veteran and his representative must be so notified. 3. The RO/AMC should contact the SSA and request all documents pertaining to any award or denial of disability benefits from the SSA, and specifically request a copy of the decision awarding or denying any benefits and copies of the medical records upon which the SSA based its decision. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2) (2013). If the records are unavailable, the claims files must be properly documented as to the unavailability of these records. 4. Then, the RO/AMC should accord the Veteran an appropriate VA examination(s) to determine the nature, extent, and etiology of any neck and/or head-related disability that he may have. The claims file must be made available to, and reviewed by, the examiner(s) in conjunction with the examination(s). All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to address the following: i) Is it as likely as not that the Veteran sustained an additional disability to his head and/or neck as a result of VA medical care, treatment, and/or examination, to include that rendered in June 2007 by a VA chiropractor and his assistant? If so, what is the additional disability? In determining whether the Veteran has an additional disability, it is necessary to compare the Veteran's condition immediately prior to the treatment in question to his condition immediately following that treatment. ii) If there is an additional disability, offer an opinion as to whether or not it is more likely than not (i.e., greater than 50 percent probability), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any such additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in performing the treatment in question. iii) If there is an additional disability, also offer an opinion as to whether it is more likely than not (i.e., greater than 50 percent probability), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any such additional disability was due to an event not reasonably foreseeable. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 5. The RO/AMC should ensure that the examination report(s) complies with this Remand and answers the questions presented herein. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. 6. Then, readjudicate the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for a neck and head disorder. If the benefit remains denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. 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. 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 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 MARTIN 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).