Citation Nr: 1643178 Decision Date: 11/10/16 Archive Date: 12/01/16 DOCKET NO. 13-25 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for cervical strain, to include as secondary to a service-connected thoracic spine condition. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and C.T. ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran completed active duty service from March 1993 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon which denied service connection for the claim on appeal. The Board notes that the Veteran testified before the undersigned Veterans Law Judge in August 2016. A transcript of that hearing has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The Board has also considered documentation included in the Virtual VA system in reaching the determination below. Accordingly, any future consideration of this case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, due to reasons that follow, a remand is required. Although the Board regrets this delay, it is necessary to ensure the Veteran's claim is appropriately developed and fairly adjudicated. Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations VA has a duty to notify and assist the claimant in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). VA's duty to assist includes either procuring, or helping the claimant procure service treatment records and other pertinent treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, a review of the Veteran's August 2016 Board hearing testimony reveals that he is currently receiving treatment for his neck at the Newport VA Community Based Outpatient Clinic (CBOC). As such records could be relevant to the claim on appeal, these outstanding VA treatment record should be collected. Additionally, the Veteran also testified that a private physician, Dr. R. had submitted a letter relevant to his cervical strain claim. However, the only letter regarding the claim on appeal that is currently associated with the record was signed by Dr. R.F. and physician assistant V.B. in February 2012. Accordingly, on remand the Veteran should be provided a release authorization to collect any outstanding treatment private treatment records relevant to his claim. Finally, the Board notes that according to McLendon v. Nicholson, when required to adequately adjudicate the claim, VA must provide a medical examination assessing the Veteran's claimed disabilities or conditions. See generally 20 Vet. App. 79 (2006). Such a medical examination is adequate when it describes the disability in sufficient detail such that the examiner's evaluation of the disability is "fully informed." Barr v. Nicholson, 21 Vet App. 303, 311 (2007). A medical examination is "fully informed" when the examiner has sufficient facts upon which to base an opinion relevant to the issue at hand. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Here, a review of the May 2011 VA examination and June 2011 addendum opinion as well as the October 2011 VA examination reveals that they are not adequate for rating purposes because they do not address the Veteran's lay contentions at his August 2016 Board hearing that he had more instances of neck pain that documented in his service treatment records for which he was treated with Motrin and muscle relaxers, and that the repetitive nature of his occupational specialty in service (hull technician) caused his cervical condition. Moreover, the Veteran indicated that his VA treating physician at the Newport VA CBOC was of the opinion that his neck issues are related to his active duty service, and as discussed above, these records have not yet been collected and were not reviewed by the VA examiners. Moreover, the Board further notes that the February 2015 supplemental opinion addressing secondary service connection did not address the proximate cause prong of secondary service connection and that the rationale underlying the aggravation etiology opinion was not supported by adequate rationale, and did not address the Veteran's lay contentions raised in his March 2012 Notice of Disagreement (NOD). Accordingly, after collection of the outstanding VA treatment records, and any additional treatment records identified or submitted by the Veteran, completion of another VA examination addressing both direct and secondary service connection is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records and associate those records with the claims file, including his Newport VA CBOC records as well as any other VA facilities. Efforts to obtain these records should be documented in the claims file. If these records cannot be located, the Veteran must be notified. 2. Provide the Veteran with a release form for any outstanding private medical records pertinent to his cervical spine. If he returns the requested information, attempt to obtain the records. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. After the above development has been completed, schedule the Veteran for an examination with an appropriate clinician to determine the etiology of his cervical spine disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: i. The Veteran's service treatment records ii. 2010-2012 private treatment records from the Samaritan Toledo Clinic iii. The Veteran's March 2012 NOD iv. The Veteran's July 2013 VA Form 9 v. The Veteran's August 2016 Board hearing testimony vi. All lay statements submitted on August 29, 2016 c. The examiner must provide opinions as to the following: i. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine condition: (1) began during active service; or (2) is related to an incident of service. ii. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine condition was proximately due to or the result of his service-connected thoracic spine condition. iii. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine condition was aggravated beyond its natural progression by his service-connected thoracic spine. d. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 4. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. After undertaking any necessary additional development, readjudicate the issue on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a 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 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). _________________________________________________ S.L. Kennedy 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).