Citation Nr: 1339943 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-07 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for lumbar spine disability, including degenerative disc disease (DDD). 2. Entitlement to service connection for cervical spine disability, including DDD and joint disease (DJD) with spinal stenosis. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD Shari Gordon, Associate Counsel INTRODUCTION The Veteran had active military service from April 1962 to March 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied the benefits sought on appeal. The Veteran was scheduled to appear via videoconference before a Veterans Law Judge, seated at the Board's Central Office in Washington, D.C., on November 8, 2012. However, the Veteran did not report to the hearing, and has not provided an explanation for his absence. As such, the Veteran's request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.703 (2013). 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 Veteran claims that he has DDD of the lumbar spine and DDD and DJD of the cervical spine due to his military occupation specialty (MOS) as a paratrooper. He asserted in his October 2010 original claim that he completed 15 jumps with occasional rough landings, including one where he landed in the trees. He further asserted in his January 2012 Notice of Disagreement (NOD) that during a landing, he was unable to properly activate his shoot and instead of landing correctly, he had to perform a three point landing, in which his back received the brunt of the fall. He claimed that he did not report his neck or back pain during service because there was no one to cover for him if he was not present at his post. The Veteran reported that he has had pain since service. He also stated that he began receiving treatment from a chiropractor for pain in his back and neck in or around 1969 in Illinois. He further asserted that he continued to seek treatment from two chiropractors in Colorado and that he later had low back surgery in 2002. The Veteran also reported that he began receiving periodic cortisone shots from 1980 until he had low back surgery in 2002. The Veteran's service treatment records (STRs) are silent for complaints or treatment of back and neck pain. Upon VA examination in August 2011, the examiner noted that the Veteran's symptoms of neck pain and back pain began to flare in 2008 to 2009 and in the mid-1990s, respectively. It was concluded that lumbar and cervical spine disability was not related to active duty. In January 2012, the Veteran provided VA with a January 2007 private treatment record from the Columbine Chiropractic Center noting his surgical history of a laminectomy (low back surgery) in 2002. His notice of disagreement received in January 2012 described 3 or 4 bad parachuting incidents that resulted in back and neck pain. The August 2011 VA examiner has not reviewed the Veteran's lay statements from the January 2012 notice of disagreement or the chiropractic treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and provide him VA Forms 21- 4142, Authorization and Consent to Release Information to VA, in order to allow the AMC/RO to obtain any relevant outstanding private treatment records. Specifically inform the Veteran that the Board seeks any private treatment records from chiropractors in Colorado who treated the Veteran beginning in or around 1969 (as referenced in the January NOD), any private treatment records during the 1980s evidencing receipt of cortisone shots (as referenced in the January NOD), and any records related to a low back surgery in 2002 (as referenced during private treatment in January 2007). Advise the Veteran that he may submit his private treatment records if he so chooses. Any and all responses, including negative responses, must be added to the claims file. If a negative response is received, the Veteran must be duly notified and provided an opportunity to submit such records. 2. After all available records have been associated with the claims file; forward the Veteran's claims file to the examiner who conducted the VA examination in August 2011 and request that he provide an addendum addressing any relevant newly-associated private treatment records and the Veteran's lay statements. The examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) that any current DDD of the lumbar spine and DDD and DJD of the cervical spine had its clinical onset during active service or is related to any in-service disease, event, or injury; specifically to include his multiple parachute jumps with hard landings. The examiner should consider the Veteran's lay statements regarding his in-service and post-service neck and back symptoms, as addressed in his January 2012 NOD. The claims file, to include a copy of this Remand, should be made available to the examiner for review in conjunction with the opinion, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the requested opinion cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. If the examiner, who performed the August 2011 VA examination, is not available, refer the claims file to another examiner to address the Board's inquiry and, if deemed necessary by that examiner, schedule the Veteran for another appropriate examination. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ THOMAS J. DANNAHER 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).