Citation Nr: 1506472 Decision Date: 02/12/15 Archive Date: 02/18/15 DOCKET NO. 10-18 338A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a cervical spine condition. 2. Entitlement to service connection for bilateral radiculopathy, legs and buttocks. 3. Entitlement to service connection for a bilateral hip condition. 4. Entitlement to service connection for a bilateral rib condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from August 1977 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran initially indicated on his VA Form 9 that he wanted a videoconference Board hearing. The Veteran withdrew his request for a hearing in December 2011. Accordingly, the Board considers his hearing request to be withdrawn. 38 C.F.R. § 20.704(e) (2014). In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the electronic "Virtual VA" and "VBMS" system to ensure a total review of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claims of service connection. In May 2010, the Veteran submitted a VA Form 21-4142 (Authorization and Consent to Release Information) for medical records from Shubert Chiropractic. The Veteran indicated that he was treated for his back and neck at that facility. In May 2010, Shubert Chiropractic was sent a request for the Veteran's medical records, with a second follow-up request made in July 2010. In July 2010 the Veteran was informed that Shubert Chiropractic was requested to provide his medical records, but that ultimately it is his responsibility to see that VA receives them. In a Report of General Information, dated August 2010, it was noted that a representative from Shubert Chiropractic called the RO and stated that they had previously sent the records. The records from Shubert Chiropractic, are not associated with the claims file. The duty to assist requires that VA make reasonable efforts to obtain private treatment records that the Veteran identifies. 38 C.F.R. § 3.159(c)(1). While, typically only an initial follow-up request is necessary to fulfill the requirement of reasonable efforts, in the present appeal another attempt should be made to secure the records, since it is known that they exist, and the medical facility stated that had already sent them. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In the present case, the Board notes that the record contains an August 2010 VA examination which sought a medical opinion on whether or not the Veteran's claimed disabilities were related to, or a result of the Veteran's service. Service treatment Records (STRs) show that the Veteran had muscle spasms to his cervical spine with complaints of pain in June 1979. STRs show that the Veteran suffered from pain to his neck due to falling and jarring his neck, and elbow playing Frisbee. The Veteran received a cervical collar as part of his treatment. The examiner noted some of the Veteran's in-service complaints, and treatment to his neck in the records review. However, in explanation of the negative nexus opinion, the examiner did not adequately explain how the in-service injuries and treatment to the Veteran's neck are unrelated to the Veteran's current cervical spine injury. Furthermore, the examiner did not discuss whether or not the Veteran's service-connected disabilities aggravated the Veteran's cervical spine condition. Therefore the Veteran should be afforded a new VA examination for his cervical spine. The Board further observes that the examiner was unable to diagnosis a bilateral hip, or a bilateral rib disability. The examiner also found that the Veteran suffers from radiculopathy, and determined that the Veteran's buttock pain, is pain from the Veteran's low back. Similarly, the Veteran complained of radiating pain from his back to his hips and ribs in statements made in June 2010. As the Veteran is service-connected for degenerative disc disease of the thoracolumbar spine, the VA examiner should render an opinion as to whether the Veteran has a current diagnosis of radiculopathy to the buttock and whether any such disability to the Veteran's ribs or hips is separate and distinct from the Veteran's degenerative disc disease of the thoracolumbar spine. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Accordingly, the case is REMANDED for the following action: 1. Make additional attempts to obtain private treatment records from Shubert Chiropractic. Two additional attempts should be made to obtain relevant private records, unless a formal finding can be made that a second request for such records would be futile. Such attempts and findings must be adequately documented in the Veteran's claims file. If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a medical examination to determine if the Veteran has a cervical spine disability; and if so, the etiology of that condition. The claims folder must be made available to and be reviewed by the examiner. All appropriate test and studies should be accomplished and all clinical findings should be reported in detail. a. Based on the evidence of record, can it be determined with a reasonable degree of medical certainty that the Veteran has a cervical spine disability? If the Veteran has developed any such disorder, it is at least as likely as not (50 percent or greater probability) that this disorder had its onset during service, or was otherwise caused by any incident that occurred during service, including the Veteran's documented in-service neck injury, spasms, and treatment from June 1979? b. Is it at least as likely as not (50 percent or greater probability) that any of the Veteran's service-connected disabilities (degenerative disc disease of the thoracolumbar spine, left rotator cuff tendonitis, bilateral elbow olecranon spur with degenerative changes, or bilateral elbow ulnar neuropathy, with entrapment) is the cause of any currently diagnosed cervical spine disability? c. Is it at least as likely as not (50 percent or greater probability) that any of the Veteran's service-connected disabilities (degenerative disc disease of the thoracolumbar spine, left rotator cuff tendonitis, bilateral elbow olecranon spur with degenerative changes, or bilateral elbow ulnar neuropathy, with entrapment) caused a worsening of any currently cervical spine disability, beyond the normal progress of that disease? d. If such aggravation is found, the examiner should determine: (1) the baseline manifestations of the Veteran's cervical spine disability; and (2) the increased manifestations that are proximately due to the Veteran's service-connected disability/disabilities. e. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected degenerative disc disease of the thoracolumbar spine. He or she should also indicate whether the Veteran has a separate diagnosis of a (i) bilateral hip disability, (ii) bilateral rib disability, or (iii) bilateral leg and buttocks radiculopathy. The examiner should indicate whether such is part and parcel of his degenerative disc disease of the thoracolumbar spine, or separate and distinct from such disability. Moreover, if such is considered to be separate and distinct, the examiner should be requested to note the symptoms attributed solely to a (i) bilateral hip disability, (ii) bilateral rib disability, or (iii) bilateral leg and buttocks radiculopathy and those attributed solely to thoracolumbar disc disease. If the examiner cannot separate the symptoms between the two disabilities, he or she should so indicate. The examiner should explain the reasons and bases for each opinion provided. In this regard, a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Thereafter, re-adjudicate the Veteran's claims for entitlement to service connection for a cervical spine disability, bilateral leg and buttock radiculopathy, bilateral hip disability, and a bilateral rib disability. If the benefits sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board. 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 2014). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).