Citation Nr: 1552024 Decision Date: 12/11/15 Archive Date: 12/16/15 DOCKET NO. 09-03 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for cervical spine disability and associated residuals, to include left arm and bilateral hand numbness, weakness, and restricted use, and bilateral degraded vision. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran had active military service from February 1988 to February 1990, and from January 1991 to May 1991, as well as service in the United States Air Force Reserve and Army Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in December 2007, which denied service connection for nerve damage due to neck injury with left arm numbness, weakness and restricted use; bilateral hand numbness, weakness and restricted use; and bilateral degraded vision. In January 2012, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing and accepted such hearing in lieu of an in-person hearing. At this hearing, the Veteran clarified the issue on appeal to be an issue of entitlement to service connection for a cervical spine disability and associated residuals. Therefore, the Board has limited its consideration accordingly. In April 2014, the Board remanded this matter for further development which has been completed, and the case has been returned to the Board for appellate consideration. This appeal has been processed using the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran essentially contends that he has a cervical spine disability due to both an April 1997 injury and a March 1998 injury, both of which he contends took place while he was serving in the Air Force Reserve on active duty. First, a letter submitted in January 2012 showed that the Veteran appears to have submitted a claim for Disability Insurance Benefits and/or Supplemental Security Income with the Social Security Administration (SSA). Therefore, upon remand, any outstanding SSA adjudication records should be obtained. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA must request potentially relevant SSA records). Next, active military, naval, or air service includes any period of active duty training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (c), (d) (2015). Personnel records obtained subsequent to the April 2014 remand confirm that the Veteran was on active duty when he was hospitalized on March 28, 1998, which he claims is when he injured his neck. These records also confirm that while the Veteran was not on active duty on the date of his April 13, 1997 injury, he was in fact on INACDUTRA. While a VA neurological examination was conducted in April 2007, it did not address the Veteran's two claimed injuries in April 1997 and March 1998, which have been confirmed to be during periods of INACDUTRA and active duty, respectively, and thus the Veteran should be afforded a new VA examination to determine the nature and etiology of his claimed cervical spine disability and whether it is as likely as not related to service, including the April 1997 and March 1998 incidents. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following actions: 1. Contact SSA and request a copy of any SSA disability records for the Veteran. A copy of any response(s) from SSA, to include (if applicable) a negative reply, should be included in the claims file. All records provided by SSA should be included in the claims file. 2. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's cervical spine disability. The claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must reflect that the claims file was reviewed in conjunction with the examination. Based on a review of the record and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's current cervical spine disability is attributable to service, including any period of active duty, ACDUTRA, or INACDUTRA, specifically including the Veteran's claimed April 1997 and March 1998 in-service injuries. In doing so, the examiner's attention is directed to: (i) The Veteran's April 13, 1997 accident during INACDTURA, with service records indicating that he slipped and twisted his back, resulting in low back pain; (ii) The Veteran's March 28, 1998 emergency room visit noting vomiting and head pressure; (iii) April 1999 imaging noting an impression of equivocal degenerative disc disease; and (iv) The Veteran's February 2003 and August 2003 workplace injuries to his neck. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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 2014). _________________________________________________ MICHAEL A. PAPPAS 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) (2015).