Citation Nr: 1756464 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-04 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to December 1971. He additionally served various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Marine Corps Reserves through June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In July 2017, the Veteran testified during a Board Central Office hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Following the hearing, the Veteran submitted additional medical evidence with a waiver of initial agency of original jurisdiction (AOJ) consideration of this evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2017). The Board may properly consider such evidence. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). The Veteran maintains that his neck disability is due to service, to specifically include periods of Reserve service. He has reported that in June 1974 during an ACDUTRA period of Reserve service, his neck was injured as it bore "a lot of weight," described as "seven and a half to eight Gs (gravitational force)," while maneuvering a fighter aircraft. See July 2017 Hearing Tr. at 5, 12. He has also reported a neck injury during his active duty service. See July 7, 1977 Veteran's letter to Dr. J.N.T (reporting to his private physician that he had "two incidents . . . in January 1969 and June 1974" injuring his neck). The Veteran's October 1966 enlistment and December 1971 separation examination reports for his active duty period service reflect normal findings referable to the neck. His June 27, 1974 Reserve service treatment record documents a report of 'pulled muscle in the neck' and "pain R sided neck muscles pulled while on . . . a flight" the prior day. In the July 7, 1977 letter to Dr. J.N.T., the Veteran wrote that he was "intermittently plagued with muscle spasm in [his] back and/or neck." A September 1981 report of medical history also notes that the Veteran's neck was injured "while flying during ATD [in] 1974." However, the record reflects that during various in-service examinations conducted during the Veteran's Reserve service, the examiner found no abnormality as to the Veteran's neck. See June 1976, August 1980, October 1985, June 1986, and October 1986 Reserve service examination reports. Post-service treatment records reflect diagnoses relevant to the claimed neck disability. See, e.g., August 2017 VA MRI findings supporting an impression of multilevel degenerative changes of the cervical spine. To date, the Veteran has not been afforded a VA examination to address the claimed neck disability. Given the ample evidence documenting in-service neck injury and current diagnoses relevant to the claimed neck disability, a remand is necessary to afford the Veteran a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Furthermore, the September 1981 report of medical history as well as the Veteran's testimony during the July 2017 hearing indicate that there are outstanding private treatment records pertinent to the neck claim. The September 1981 report of medical history lists Dr. J.N.T. located in Marietta, Georgia, Dr. B. located in Los Angeles, California, and Dr. S. in Hawthorne, California. The AOJ has not attempted to obtain such identified private treatment records, and given the likely relevance of these records, they should be obtained on remand. Further, while on remand, the AOJ should associate any updated VA treatment records with the Veteran's claims file and request that he identify other outstanding private treatment records referable to his claim. The Board notes that some of the Veteran's service treatment and military personnel records are illegible, but are the best copies available in VA's possession. As it appears that the Veteran may have more legible copies of those records, while on remand, the AOJ should request that the Veteran submit any copies of service treatment and/or military personnel records in his possession that he has not already submitted to VA. Finally the Board notes that it is in receipt of recently submitted documents from the Veteran's physician, dated in June 1977, and August 2017. Accordingly, the case is REMANDED for the following action: 1. Send a letter to the Veteran and request that he submit any copies of service treatment and/or military personnel records that he has in his possession that he has not already submitted to VA. Any negative response should be associated with the record. 2. Provide the Veteran with an opportunity to identify any other outstanding private or VA treatment records relevant to his claim, to include any outpatient treatment records from Dr. J.N.T. located in Marietta, Georgia (a letter dated in June 1977 is of record), Dr. B. located in Los Angeles, California, and Dr. S. in Hawthorne, California. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 3. After obtaining any outstanding records, schedule the Veteran for a VA examination to address the claimed neck disability. The claims file must be made available to the examiner for review, and all indicated tests should be performed. Following a review of the claims file, the reviewing examiner is requested to furnish an opinion with respect to the following questions: (A) The examiner should identify all neck disabilities found to be present since the date of the claim (i.e. since February 2011). (B) For each currently diagnosed neck disability, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that such disability is related to his active duty period of service (i.e. from October 1966 to December 1971). (C) Notwithstanding the above, for each currently diagnosed neck disability, the examiner should opine whether it is at least as likely as not that the disability was caused or aggravated as result of disease or injury during the period of ACDUTRA on June 26, 1974. In answering the above questions, the examiner should consider all pertinent evidence, to include but not limited to the following evidence: 1) The June 27, 1974 Reserve service treatment record documenting a report of 'pulled muscle in the neck' and "pain R sided neck muscles pulled while on . . . a flight" the day before; 2) the July 7, 1977 letter to Dr. J.N.T., in which the Veteran wrote that he was "intermittently plagued with muscle spasm in [his] back and/or neck"; and 3) the September 1981 report of medical history also noting that the Veteran's neck was injured "while flying during ATD [in] 1974." A complete rationale should be given for all opinions and conclusions expressed. 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a Supplemental Statement of the Case. The Veteran 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). _________________________________________________ MARJORIE A. AUER 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).