Citation Nr: 1756683 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 11-32 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for residuals of a head and neck injury, to include a neck disability. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to June 1967. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran provided testimony before a Veterans Law Judge (VLJ) in January 2014. A transcript of the hearing is of record. In August 2017, the Veteran was notified that the VLJ who conducted the January 2014 hearing no longer works for the Board and a new hearing was offered. The Veteran responded in the same month indicating he does not wish to have a new hearing and asked that the matter be decided based upon the evidence of record. This issue was most recently before the Board in February 2015; the claim was reopened and remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that a fall during service caused his current neck disability. The Veteran was offered a VA examination in March 2017. The rationale used to support the VA medical opinion is inadequate. Thus a supplemental medical opinion is required. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In the March 2017 opinion, the examiner referred to the Veteran's records lacking evidence of a neck injury, requiring treatment. However, the Veteran testified at his January 2014 Board hearing that his private medical treatment records were destroyed by a flood in 2001. The Veteran provided a statement to that effect, and historical records support a severe flood in i 2001 in the Veteran's West Virginia town. Therefore, the March 2017 VA examiner inappropriately relied on the lack medical treatment records after the Veteran left service. The examiner also failed to consider the Veteran's credible, consistent report of neck pain since service. The Board also points out that service connection has been granted for headaches, as a residual of the in-service fall. Thus, VA has accepted that the fall occurred, regardless of whether there are contemporaneous records. There are also some inconsistencies in the March 2017 opinion, when compared to the record as a whole. For example, the VA examiner relied upon the May 1967 neurology and psychiatry reports that the Veteran suffered from bi-frontal headaches for three to four years that were unresponsive to medication. Yet, during the enlistment examination four months earlier, the examiner noted on the Veteran's Report of Medical History that the Veteran's headaches were relieved by aspirin. These same neurology and psychology records also contradict the Veteran's statements that he experienced a loss of consciousness, which could be determinative as to the velocity of the Veteran's fall. Furthermore, the Board notes the coincidence that an April 1967 STR reports that the Veteran was complaining of pain to the right frontal area of his head and that the available post treatment records report that the Veteran's neck symptoms also occur on his right side. Additionally, the Veteran's emergency treatment records, following his fall are missing. STR's from April 1967 state that the Veteran fell a week earlier and was "seen in ER." However, there are no medical treatment records from any emergency department documenting treatment immediately following the actual fall. Furthermore, the X-ray results reported weeks later in the STRs only report results for the Veteran's skull. No X-ray reports for the Veteran's neck are located in his STRs. On remand, the RO should take all necessary efforts to obtain and associate with the file, any additional evidence that may relate to the circumstances of the in-service fall and treatment, especially if it was at a hospital. Accordingly, the case is REMANDED for the following action: 1. With assistance from the Veteran, take all appropriate action to obtain treatment records from any facility that provided emergency medical treatment to the Veteran immediately after his fall in service, to include any hospitalization. 2. Take all appropriate action to obtain any incident or accident investigation reports, occupational reports or safety review reports pertaining to the Veteran's fall during service. 3. After completion of the foregoing, forward the claims file, to include a complete copy of this remand, to the March 2017 VA examiner to obtain a supplemental medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's neck disability is causally related to his fall during active service. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner should discuss and address the detailed history taken from the Veteran in the opinion. If the March 2017 examiner is not available or otherwise determines the opinion cannot be provided without an examination, the Veteran should be scheduled for an examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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). _________________________________________________ M. E. LARKIN 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).