Citation Nr: 1341791 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 11-22 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected right shoulder disability. 2. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected right shoulder disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran had active duty service from February 1991 to February 1996. He also had a confirmed period of active duty for training (ACDUTRA) from August 1989 to December 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in November 2010, a statement of the case was issued in August 2011, and a substantive appeal was received in August 2011. A Board hearing was conducted in April 2012. The Board has rephrased the issues as listed on the title page to better reflect the claims on appeal. The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered. 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 After reviewing the claims file, the Board believes that additional development is necessary to ensure that VA has met the duty to assist the Veteran. The Veteran contends that he currently has a lumbar spine disability and a cervical spine disability which are either related to his military service or to his service-connected right shoulder disability. The Veteran's service treatment records (STRs) note that he complained of low back pain in September 1994 and was assessed with back sprain; in October 1994, it was noted that his back sprain had resolved. His STRs also note that he was assessed with right shoulder impingement with cervical involvement in August 1995; in October 1995, he reported that his neck was feeling better. Two months after his service discharge, at an April 1996 VA general medical examination, the Veteran complained of "some neck stiffness which he has had recently." The examiner opined that the neck stiffness was "probably fibromuscular in origin, rather than being arthritis." No contemporaneous x-rays were performed. From July 2005 to January 2006, the Veteran received private treatment and nerve root injections in his lumbar spine and cervical spine in connection with a post-service injury at work in July 2005. A July 2005 private examination led to a diagnosis of lumbar strain, which became the subject of a Workers' Compensation claim. A contemporaneous private MRI of his cervical spine in August 2005 revealed right paracentral and partially right foraminal disc protrusion at the C3/4 level mildly narrowing the right-sided neural foramen without evidence for central canal narrowing or nerve root compromise. VA treatment reports have documented the Veteran's ongoing treatment for low back pain (since April 2010) and neck pain (since September 2010). The most recent VA treatment reports of record are dated in January 2012 and are from the VA Medical Center (VAMC) in Chillicothe, Ohio. In a March 2010 statement, the Veteran indicated that he had also received relevant treatment at the VAMC in Seattle, Washington. As VA medical records are constructively of record and must be obtained, the RO/AMC should obtain all outstanding VA treatment records for both of the Veteran's claimed disabilities. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). At a September 2010 VA orthopedic examination, the Veteran was diagnosed with lumbar bulging disc, and cervical spondylosis C6&7. Regarding the lumbar bulging disc, the examiner opined that "[u]sually bulging is considered part of the normal aging process of the dis[c]"; the examiner did not provide an opinion regarding the relationship between the current lumbar spine disability and the Veteran's military service. Regarding the cervical spondylosis C6&7, the examiner opined that this disability was less likely than not related to back pain in service, as the back pain documented in service was lumbar and there was no cervical pain noted in the claims file records; however, the examiner failed to account for the cervical spine findings noted in the Veteran's STRs, and did not provide an opinion regarding the relationship between the current cervical spine disability and the Veteran's military service. A VA MRI of the Veteran's lumbar spine in May 2011 revealed mild degenerative facet arthropathy at L4-L5 and L5-S1. A VA MRI of his cervical spine in May 2011 revealed moderate right neural foraminal narrowing at C3-C4 secondary to right foraminal disc protrusion and uncovertebral overgrowth. At his April 2012 hearing, the Veteran testified with regard to hurting his back and neck in service (by carrying heavy ammunition and also injuring himself in a helicopter landing). He also testified that he had suffered from low back pain and neck pain since his military service and that he had sought treatment following service from private chiropractors. All available treatment records from any treatment provider(s) identified by the Veteran should be obtained. Under the circumstances, the Board finds that VA's duty to assist the Veteran requires an adequate VA examination and nexus opinion to determine if he currently has a lumbar spine disability and/or a cervical spine disability which are related to any incident of his military service, or were caused or aggravated by his service-connected right shoulder disability. Accordingly, the case is REMANDED for the following actions: 1. After securing necessary releases, the RO/AMC should obtain all treatment records pertaining to the Veteran from any treatment provider who has diagnosed or treated him for lumbar spine and/or cervical spine disabilities since his discharge from service. If any records are unavailable, then a negative reply is requested. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. The RO/AMC must make arrangements to obtain all outstanding (not already contained in the claims file) VA medical records of treatment the Veteran has received for his claimed disabilities, including ongoing records from the Chillicothe VAMC and all records from the Seattle VAMC. If any records requested are unavailable, the reason must be explained for the record. 3. After completion of the above to the extent possible, the Veteran should be scheduled for an appropriate VA examination for the lumbar spine and cervical spine disabilities at issue. The claims file should be made available to the examiner for review. The examiner should clearly report whether or not there are any current lumbar spine and/or cervical spine disabilities. The examiner should set forth all clinical and special test findings (to include x-ray results if x-rays are deemed medically advisable). After examining the Veteran and reviewing the claims file, the examiner should offer a response to the following question for each diagnosed lumbar spine disability and for each diagnosed cervical spine disability (to include all such disabilities diagnosed during the period of the current claim): (a) Is it at least as likely as not (a 50% or higher degree of probability) that such disability is causally related to any incident of the Veteran's military service (taking into account the relevant STRs)? (b) Is it at least as likely as not (a 50% or higher degree of probability) that such disability is proximately due to his service-connected right shoulder disability? (c) Is it at least as likely as not (a 50% or higher degree of probability) that such disability has been aggravated by his service-connected right shoulder disability? The examiner should offer a rationale for all opinions given with reference to pertinent evidence. 4. After completion of all of the above to the extent possible, the RO/AMC should review the expanded record and readjudicate the appeal. If either issue on appeal remains denied, the RO/AMC should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for appellate review. The Veteran 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. 2013). _________________________________________________ ALAN S. PEEVY 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).