Citation Nr: 1753977 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 14-09 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Teague, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1973 to April 1974 and from April 1975 to December 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The RO in Los Angeles, California, currently has jurisdiction over this matter. In July 2015, the Veteran testified at a Travel Board hearing held in Los Angeles, California and in front of the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the Veteran's electronic claims file. In September 2014, the Board remanded this matter so the Veteran could be afforded the above-mentioned Travel Board Hearing. Thus, the requested actions have been completed with no further action necessary to comply with the Board's remand directives; the case is once again before the Board for appellate consideration of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The Veteran contends his current neck disability occurred during his active military service. Specifically, the Veteran indicated he injured his neck while carrying heavy equipment during service. The Veteran's entrance and exit examinations are silent for any cervical spine disabilities. However, the Veteran received in-service treatment for intermittent bilateral neck pain with numbness. Worker's compensation records from 2009 show the Veteran was treated for neck pain. A June 2009 MRI of the Veteran's cervical spine showed posterior disc protrusion at C6-C7. Additionally, left lateral stenosis at C4-C5 was detected. In January 2014, the Veteran underwent a VA examination to determine the nature and etiology of any neck disabilities. The VA examiner diagnosed the Veteran with cervical strain and degenerative arthritis of the spine. The VA examiner opined that the Veteran's neck disabilities were less likely than not caused by the Veteran's military service. The rationale provided for the opinion was that the Veteran experienced an isolated instance of neck pain in service and there was no indication of recurrent neck pain at discharge. The VA examiner added that there was no objective evidence of a neck disability from the Veteran's separation from service in 1977 until 2009. The Veteran has stated that his neck pain has been continuous since service. See May 2013 Statement in Support of Claim; February 2014 Letter from the Veteran. In July 2015, the Veteran submitted an opinion from a treating physician that opined it was more likely than not that the Veteran current neck disability was related to his military service. However, the physician provided no rationale for the opinion. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). To that extent, both the January 2014 VA examination and July 2015 treating physician's opinion are both inadequate to allow the Board to make a fully informed decision. Specifically, the Veteran has reported continued symptoms associated with his neck since service. The Veteran is competent to relate some symptoms of a neck disability that he experienced at any time, including pain and numbness; however, he is not competent to opine on whether there is a link between the current, specifically diagnosed neck disability and active service because such an opinion regarding causation requires specific medical knowledge and training. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL injury is too "medically complex" for lay diagnosis); King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). Similarly, the VA treating physicians opinion is inadequate because no rationale was provided. As such, the Board finds that a new examination is necessary to determine the etiology of the Veteran's currently diagnosed neck disabilities. See Barr, 21 Vet. App. 303, 312 (2007). Finally, the Veteran has indicated that there are additional medical records not currently associated with the claims file. Specifically, the Veteran has indicated that he continued to receive private treatment for his neck and a December 2016 letter from the Veteran's representative indicated there are additional VA treatment records that are not associated with the claims file. It is unclear from the record whether the Veteran has any records with the Social Security Administration. Based on these deficiencies, additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to provide sufficient information and necessary authorization in order to obtain copies of any outstanding records of treatment by VA or non-VA health care providers for any cervical spine treatment. The letter should invite the Veteran to submit any pertinent medical evidence in support of his claim. If the Veteran provides the necessary information and authorizations, obtain any outstanding clinical records and incorporate them into the electronic claims file. 2. Obtain all VA treatment records from 1998 to January 2009 and from March 3, 2017 to the present and associate them with the electronic claims file. 3. Obtain a copy of any Social Security decision awarding or denying disability benefits for the Veteran, copies of all medical records upon which any such Social Security disability benefit award was based, and a copy of any medical records associated with any subsequent disability determinations by Social Security for the Veteran. All requests for records and their responses should be associated in the claims folder. Any records obtained should be associated with the claims file. 4. After any records requested above have been associated with the electronic claims file, obtain a medical opinion on the etiology of the Veteran's current neck disability from a physician with expertise in musculoskeletal disabilities. The VA examiner should note the records review in the examination report (another examination of the Veteran is not required.) If the VA examiner determines that an additional examination of the Veteran is necessary to provide reliable opinions as to causation, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The VA examiner should offer the following opinion: Is it at least as likely as not (50 percent or greater probability) that the Veteran's current neck disability, to include neck strain and degenerative arthritis of the spine, had its onset in service or is otherwise related to his active service, or manifest to a compensable degree within one year of separation from service? The examiner must discuss the in service treatment for neck pain (August 1975) and the lay testimony of continuous symptoms since service. A rationale should be given for all opinions and conclusions rendered. 4. After completing all indicated development, and any additional development deemed necessary, readjudicate the claim. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response. 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). _________________________________________________ H. SEESEL 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) (2017).