Citation Nr: 1342858 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 12-05 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for cervical spine disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The appellant (Veteran) served on active duty from February 1977 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for cervical spine disorder. The appellant testified at a Travel Board hearing in April 2012 before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. The issues of service connection for left arm disorder and lower back disorder have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. 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 appellant asserts that service connection is warranted for cervical spine disorder based upon service incurrence. He maintains that he was involved in an automobile accident while in service and injured his cervical spine as well as other parts of his body. He was seen by a doctor on post and was told that he only needed to take Aspirins and hot showers. He claims that he has had cervical spine pain and complaints since that time. During his April 2012 Travel Board hearing, the appellant testified that he had surgery of the cervical spine three years prior and he was informed by his doctor at that time that his cervical spine disability did not just happen, but was a result of an old injury. He also testified that he had been treated at the VA Medical Center (VAMC) in the state of Washington shortly after service, and at the VAMCs Hines and Manteno in Illinois. None of those records are associated with the claims folder. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file all outstanding VA records. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from the VA Hines and Manteno or any other identified VA facility from 1980 to the present and associate those records with the claims folder. 2. Thereafter, the appellant should be afforded an appropriate VA orthopedic examination. The claims folder must be made available and reviewed by the examiner. All indicated studies should be performed. The examiner must provide an opinion indicating whether it is at least as likely as not (a 50 percent probability or greater) that the appellant's cervical spine (neck) disorder had its onset in-service or within one year of service discharge or is otherwise shown to have been incurred in or due to an event of service. In offering these assessments, the examiner must discuss the appellant's statements regarding the onset and/or chronicity of the pertinent symptoms. All findings and conclusions should be set forth in a legible report. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, such should be so stated along with supporting rationale. 3. Then, readjudicate the issue on appeal. If the benefits sought on appeal are not granted, the appellant should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, and should be given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ F. JUDGE FLOWERS 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).