Citation Nr: 1616568 Decision Date: 04/26/16 Archive Date: 05/04/16 DOCKET NO. 13-10 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Sorisio, Counsel INTRODUCTION The Veteran served on active duty from January 1960 to December 1962. The case is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The case was originally before the Board on appeal from an August 2010 rating decision of the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned in December 2014. A transcript of the hearing is of record. In a decision issued in March 2015, the Board, in pertinent part, denied the Veteran's claims seeking service connection for low back and neck disabilities. The Veteran appealed that decision to the Court. In February 2016, the Court issued an order that vacated the March 2015 Board decision and remanded the matter on appeal for readjudication consistent with the instructions outlined in the February 2016 Joint Motion by the parties. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND A. VA Examinations In a February 2016 Joint Motion, the parties determined that VA did not satisfy its duty to assist the Veteran because it did not obtain a VA examination to assess the etiology of his neck disability. Specifically, the Joint Motion noted that the record established the Veteran had in-service events as his DD Form 214 reflects that he had basic airborne training and was in receipt of a parachutist badge. The Joint Motion also reported the record shows the Veteran has a current disability of degenerative disc disease of the cervical spine and that a September 2010 opinion from Dr. P.P. concludes that his cervical spine degenerative disc disease "is likely . . . a result of his injuries while doing a parachute jump back in 1960." The parties agreed that this evidence met the criteria of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), and that remand was necessary for VA to provide the Veteran with an examination or opinion regarding the etiology of his neck disability. Regarding the Veteran's low back disability, the Joint Motion found that the August 2010 VA examiner's opinion that the Veteran's degenerative disc disease of the lumbar spine was not caused by or related to parachute jumping during military service was insufficient. The parties concluded the examiner's rationale that the Veteran had no documented "acute and chronic lower back disabilities as well as back treatment when he was in active service" was insufficient given the evidence that the Veteran had reported he did not seek treatment for back pain in service. Additionally, the Joint Motion noted that the Veteran had reported to the August 2010 VA examiner that he sought chiropractic treatment in 1963. As a result, the parties concluded VA did not provide an adequate medical examination for the Veteran's low back disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In order to ensure compliance with the requirements of the Joint Motion, the Board must remand the case to obtain adequate examinations and opinions that assess the etiology of the Veteran's low back and neck disabilities. B. Private Records The Joint Motion also noted that a July 1973 Appalachian Regional Hospitals Discharge Summary reflects that the Veteran reported being hospitalized in 1965 for a lumbosacral sprain. Although the parties recognized that these records may no longer be in existence given that the treatment was over 50 years ago, the Joint Motion requested that VA attempt to obtain the records as they may be relevant to the Veteran's claim seeking service connection for a low back disability. C. VA Records The record reflects the Veteran has received VA treatment for neck and back pain. The most recent VA treatment records are from July 2007. Therefore, any updated pertinent VA records should be obtained and associated with the claims file on remand. Accordingly, the case is REMANDED for the following actions: 1. With any needed assistance from the Veteran, obtain any identified private treatment records for a low back or neck disability, including records of a 1965 hospitalization for a lumbosacral sprain. 2. Obtain the Veteran's VA treatment records from July 2007 to the present. 3. After completing the development requested in items 1 and 2, schedule the Veteran for an examination(s) regarding the etiology of low back and neck disabilities. The entire claims folder should be made available to and be reviewed by the examiner(s) in conjunction with this request. The examiner(s) should specifically address the following questions: (A) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's neck disability is related to injuries sustained during in-service parachute jumps or is otherwise related to repeated impacts from in-service parachute training? (B) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's low back disability is related to injuries sustained during in-service parachute jumps or is otherwise related to repeated impacts from in-service parachute training? For purposes of the above requests, the examiner(s) should accept as true that the Veteran completed multiple parachute jumps during service. The examiner should also consider July 2013 argument from the Veteran's representative that research he located indicated that landings from "impact loading" jumps put undue pressure and stress on the back and legs; a September 2010 opinion from Dr. P.P.; a July 1973 record indicating the Veteran was hospitalized for a lumbosacral sprain in 1965; an August 2001 Williams Chiropractic record reflecting the Veteran was "knocked out" in a race car accident five years beforehand; and June 2004 and October 2005 Chipley Chiropractic records indicating the Veteran experienced post-service low back and neck injuries. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for any opinion rendered. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Then, if any benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and afford them reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).