Citation Nr: 1759997	
Decision Date: 12/26/17    Archive Date: 01/02/18

DOCKET NO.  09-07 195A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to an increased rating for spondylolisthesis and low back strain, L5-S1, currently evaluated as 10 percent disabling.

2.  Entitlement to service connection for a cervical spine disorder.

3.  Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Matthew Schlickenmaier, Associate Counsel

INTRODUCTION

The Veteran had active duty service in the U.S. Army from May 2001 to April 2003.  

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, Decatur, Georgia, and Baltimore, Maryland.  Jurisdiction currently resides with the RO in Baltimore, Maryland.

The Veteran indicated in a March 2009 VA Form 9 that he wished to testify at a Travel Board hearing.  In February 2017, however, the Veteran notified VA that he wanted to cancel the hearing.  Therefore, as there is no other indication that the Veteran still desires a hearing, his request for a hearing is considered withdrawn.  See 38 C.F.R. § 20.704(e) (2017).
 
This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records.

The issues of entitlement to an increased rating for a low back disability and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The evidence is evenly balanced as to whether the Veteran's cervical spine strain is proximately due to or the result of service-connected spondylolisthesis and low back strain.



CONCLUSION OF LAW

Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for cervical spine strain have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends, in pertinent part, that his current neck disability is the result of his service-connected low back disability.  Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).  Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In a claim received in July 2006, the Veteran asserts that he has a cervical spine disability that was caused by his service-connected lumbar spine disability.  Attached to the claim is an April 2006 VA treatment record of a cervical spine x-ray noting an impression of anterior bridging osteophyte between C5-C6 with questionable degenerative disc disease at C5-C6 and borderline retrolisthesis of C5 on C6.

In September 2006, a VA contract examiner noted that the Veteran had been suffering from a neck condition which resulted in pain and stiffness, as well as C5-C6 degenerative disc disease which resulted in pain and stiffness.  As to the neck condition, the examiner noted that objective factors included tenderness and limited range of motion; the diagnosis was cervical spine strain.  As to degenerative disc disease, the examiner stated, "there is no diagnosis because there is no pathology to render a diagnosis."  The examiner added that cervical spine x-ray findings were within normal limits and an attached September 2006 x-ray of the cervical spine showed an impression of a negative cervical spine.  As to whether the Veteran had a current disability of the neck, the examiner responded, "yes."  As to whether the neck disability was related to service-connected spondylolisthesis and low back strain, the examiner also responded, "yes."

In a November 2006 rating decision, the RO denied service connection for a neck disability on the basis that there was no evidence of a current disability and because "[a]lthough the VA examiner makes the statement that your current neck disability is related to your low back disability, his medical opinion was a general conclusion based on a history furnished by you and on unsupported clinical evidence."  

In December 2012, a VA examiner checked a box on a cervical spine disability benefits questionnaire indicating that the Veteran had never been diagnosed with a cervical spine condition; however, in a later portion of the questionnaire, the examiner notes that an August 2010 MRI showed mild foraminal narrowing at C4-C5 and mild bulging and mild foraminal narrowing at C5-C6.  The examiner there opined that it was less likely as not that the neck issues are caused by the lower back because the patient "has not had a complete [workup] of his neck issues."

A subsequent supplemental statement of the case continues to deny the claim on the basis that there is no current diagnosis.

In sum, there appears to be some question as to whether the Veteran has current cervical spine degenerative disc disease.  While the Veteran contends that the April 2006 X-ray is sufficient to establish such a diagnosis, that document indicates that the impression was "questionable" and subsequent examiners also appear to doubt such a diagnosis.  In denying the claim, however, the RO appears to have ignored the September 2006 examiner's diagnosis of cervical spine strain, and the Board does not observe any reason to doubt the legitimacy of such a diagnosis given that the examiner there conducted an evaluation of the Veteran and noted objective factors including tenderness and limited range of motion.  Accordingly, the Board finds that the Veteran has met the current disability requirement.

As to whether the Veteran's current neck disability is related to his service-connected lumbar spine disorder, there is one opinion in favor and one against.  While the September 2006 opinion fails to support its conclusion with a fully supported rationale, the rationale offered by the December 2012 examiner is also lacking.  In this regard, it is not clear to the Board what the examiner means by not having "a complete workup," nor is it clear how any reasonable interpretation of this statement is true considering that the Veteran had at least two examinations of the cervical spine.  Moreover, to the extent this opinion relies on the lack of a current diagnosis, this is not supported by the record given the September 2006 diagnosis of cervical spine strain.  Although it is not clear whether the September 2006 examiner reviewed the claims file, because the relationship between the Veteran's current lumbar and cervical spine disorders is the dispositive issue in this case, the fact does not weigh heavily against that opinion.

In sum, there is one opinion in favor and one against, both of which are entitled to approximately the same probative value.  As such, the Board finds that, overall, the evidence is approximately evenly balanced as to whether the Veteran's current cervical spine strain is proximately due to or the result of his service-connected lumbar spine disorder.  The Veteran is therefore entitled to the benefit of the doubt.  38 U.S.C.A. § 5107.  The benefit-of-the-doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits."  Wise v. Shinseki, 26 Vet. App. 517, 531 (2014).  The appeal is granted.



ORDER

Entitlement to service connection for cervical spine strain is granted.


REMAND

As to the claim involving the lumbar spine, the most recent examination addressing this disability took place in December 2012.  Considering the length of time that has passed since the last examinations and recent evidence that the disability may have worsened, see e.g. MedStar treatment record indicating the need for lumbar spine fusion surgery, the Board finds that a new VA examination should be obtained.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous").

In addition, during the pendency of the increased rating claim on appeal, the Veteran has claimed that his service-connected disabilities have rendered him unemployable.  See e.g., March 2009 VA Form 9.  The issue of entitlement to a TDIU has thus been raised by the evidence of record.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).

Finally, there appear to be outstanding VA treatment records.  Although VA treatment records were most recently associated with the claims file in August 2013, these records were dated from April 2008 from the Atlanta VA Medical Center.  It appears that the Veteran has moved and currently resides in Maryland.  On remand, the AOJ should clarify whether the Veteran has received any additional VA treatment and, if so, associate with the claims file any such outstanding records.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran to clarify the dates and locations of any VA treatment dated after April 2008.  Then associate with the claims file any outstanding VA treatment records.

2.  Thereafter, the Veteran should be afforded a VA examination to evaluate the current severity of his service-connected lumbar spine disorder.  The electronic claims folders should be made available to the examiner for review in conjunction with the examinations and the examiner should acknowledge such review in the examination report.  Any indicated studies should be performed.  The examination should be conducted in accordance with the current disability benefits questionnaire or examination worksheet applicable to the lumbar spine.

The examiner should fully describe and distinguish any impairment arising from pain on active motion, passive motion, in weight-bearing, and in nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

A complete rationale should accompany any opinion provided.

3.  After completion of the above, readjudicate the claims, to include the issue of entitlement to a TDIU.  If any benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the most recent supplemental statement of the case, and provided an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.

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).




______________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs