Citation Nr: 1339955 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-19 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for degenerative joint disease of the cervical spine and a thoracic spine disorder, claimed as a neck and upper back injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from July 1962 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran was scheduled for a Central Office hearing for February 8, 2011. However, he failed to report to the scheduled hearing. Accordingly, the Board deems the Veteran's hearing request to be withdrawn. See 38 C.F.R. § 20.704(e) (2013). In May 2011, the Board reopened the previously denied claim of entitlement to service connection for degenerative joint disease of the cervical spine, which was claimed as an upper back and neck injury, and remanded the issue for further development. At that time, the Board also referred the issue of entitlement to service connection for a back disorder to the agency of original jurisdiction (AOJ) for appropriate action. However, the April 2009 rating decision addresses the Veteran's statements regarding his upper back, or thoracic spine, which have been made contemporaneously with his current claim for a neck injury, and the medical evidence of record. Therefore, the Board finds that the issue on appeal includes the neck and upper back (cervical and thoracic spine). 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 Board has reviewed the medical and lay evidence of record and finds that additional development is required before deciding the claim on appeal. The Veteran contends that he sustained severe neck and upper back injuries during military service in 1965 or 1966 at the same time that he injured his left index finger. He specifically asserts that while he was aboard the USS Independence, an auxiliary air door closed on him, "crushed" his neck and upper back and "almost cut [him] in half;" he stated that his finger was the last thing out. Service treatment records document a November 1965 laceration wound on the first digit of the left hand as well as intermittent complaints of neck and back pain. However, they do not reference a severe injury of the neck and upper back as the Veteran describes in connection with his current claim, he explicitly denied any history of injury when he sought treatment for back pain in May 1967, and examination reports dated in June 1968 and in July 1969 on separation reflect that the spine was normal on clinical evaluation. In November 1965, less than two months after separation from service, the Veteran's claim for service connection for a November 1965 injury of the left index finger was received by VA; he did not claim entitlement to a neck or upper back disability at that time. During an April 1970 VA examination, he described lacerating his left index finger while aboard the USS Independence. The diagnosis was laceration of left index finger with severed extensor tendon. A May 1970 rating decision granted service connection for residuals of a left index finger injury, citing the November 1965 service treatment record that documented a lacerated wound of the left hand involving the second and third fingers and findings on VA examination. In VA treatment records dated in January 1991, the Veteran complained of left thumb pain and reported an initial severe crush injury to his thumb in 1966. Subsequent records reveal that he had left thumb surgery in September 1991. The records do not document reports of an injury involving the neck or upper back or complaints or treatment for neck or upper back problems. The earliest medical evidence of record regarding the cervical and thoracic spine consists of VA x-ray reports dated in March 1999. The impression of the cervical spine x-ray was degenerative spondylosis; bi-level disc derangement; bilateral encroachment. The impression of the thoracic spine x-ray was mild lower thoracic dextroscoliosis. Unfortunately, contemporaneous clinical records from the VA physician who requested the x-ray studies are not associated with the claims file. The impression of a May 2002 VA cervical spine x-ray study was no significant changes of the spondylosis since 1999. A June 2002 VA treatment record reflects the Veteran's complaint of aggravating his upper back pain after he visited his son to help work in his concrete business. The AMC/RO should obtain and associate with the claims folder all treatment records from the Bay Pines VA Healthcare System (HCS) since establishing care there, including treatment records from the physician who ordered the March 1999 cervical and thoracic spine x-ray studies; records dated from January 2005 to January 2009; and records dated from August 2011 to the present. After outstanding relevant treatment records have been obtained, the Veteran should be afforded an additional VA examination and medical opinion. During the September 2011 VA spine examination, the Veteran provided a copy of a June 2011 private evaluation report from R. Bundschu, M.D., to the VA examiner. The private evaluation report notes that the Veteran "complains of pain primarily in the cervical and thoracic posterior regions with radiating components into the right upper extremity to the pinky and ring fingers. He states that he has had this pain for about six years. He denies any specific traumas associated with the onset of the pain." After reviewing the claims file and examining the Veteran, the VA examiner opined that the Veteran's current cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury or event. In support of his conclusion, the examiner reasoned, in part, that the "record by a private physician from [two] months ago [] states the [Veteran's] neck pain began approximately [six] years ago and that the [Veteran] denies any specific trauma." The examiner did not offer an opinion regarding the thoracic spine. Unfortunately, the June 2011 private evaluation report is imprecise regarding "this pain" that the Veteran had for about six years. However, because VA x-ray evidence dated in March 1999 reveals disability of the cervical and thoracic spine and a June 2002 treatment record reflects a complaint of upper back pain, it is reasonable to infer that Dr. Bundschu was referring to a six-year history of a radiating component of cervical and thoracic spine pain rather than ordinary cervical and thoracic spine pain with a relatively recent onset. In addition, the Veteran's denial of any specific trauma may be consistent with his report to Dr. Bundschu regarding radiating pain, but it would be inconsistent with his prior assertions that his neck and upper back pain are the result of getting caught in an auxiliary air door during military service. As a result, the Board finds that another VA medical opinion is required to decide the claim. Accordingly, the case is REMANDED for the following action: 1. Obtain from the Bay Pines VA HCS all treatment records since establishing care there, including treatment records from the physician who ordered the March 1999 cervical and thoracic spine x-ray studies; records dated from January 2005 to January 2009; and records dated from August 2011 to the present. 2. After the above development has been completed, schedule the Veteran for a VA spine examination to assess the nature and etiology of his claimed cervical and thoracic spine disability. The claims file and a complete copy of this REMAND should be made available to and reviewed by the examiner. All necessary tests, including x-rays, should be conducted. The examiner should diagnose any cervical and thoracic spine disability found to be present. Additionally, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any current cervical and thoracic spine disability, including cervical degenerative joint disease and mild lower thoracic dextroscoliosis, had its onset in service or is related to any in-service disease, event, or injury. In offering these opinions, the examiner should specifically acknowledge and comment on the evidence of record, to include service treatment records; VA outpatient treatment records, including the March 1999 VA x-ray reports and contemporaneous clinical records; and lay statements from the Veteran's fellow soldier, ex-wife, and friend/former project manager. Additionally, the examiner should discuss the Veteran's lay statements regarding chronicity of symptomatology when discussing the offered opinion. A complete rationale for all conclusions must be included in the report provided. (Any medical record reviewed and relied on by the examiner must be included in the claims folder). If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AMC/RO should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion with respect to any diagnosed cervical and thoracic spine disability can be obtained). 3. After completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran's claim for service connection for a cervical and thoracic spine disability should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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. 2013). _________________________________________________ J. A. MARKEY 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).