Citation Nr: 1802433 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-36 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1967. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefit sought on appeal. This claim was previously before the Board in May 2015 and May 2016. The claim was remanded for further development. In March 2015 the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge. A transcript of hearing has been associated with the Veteran's claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, remand for a new VA examination and opinion is necessary in this instance. In May 2016 the Board remanded the Veteran's claim for a new examination and opinion that considered and addressed the Veteran's credible testimony that he experienced a neck injury in-service when his helmet was ripped off and jerked his neck during a parachute jump. The Board's remand directives instructed the VA examiner was to accept that the Veteran sustained such an injury and to accept the Veteran's statements regarding post-injury continuity of cervical spine problems. The June 2016 VA examination contained an opinion that acknowledged the injury that the Veteran reported but found that it was less likely than not that the current cervical spine disability was causally related to the incident.. However, the examiner appears to have discounted the probative value of the Veteran's description of the injury, citing the lack of evidence of a reported neck injury in the service treatment records (STRs). The VA examiner also cited documented in-service parachute induced injuries as further rationale for her opinion, presumably to demonstrate that the Veteran had at least some history of reporting such injuries and that he never reported the injury to the cervical spine. Finally the VA examiner cited the fact that the diagnosis did not come until 2000. The VA examiner ultimately concluded that she could not "make nexus between current neck condition and service" and that the overhead work the Veteran did during his post-service occupation "is significant in etiology of [the Veteran's] current neck condition." The June 2016 opinion and VA examination remains inadequate for rating purposes and therefore the Board must obtain an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board, as stated in the previous remand, has found the Veteran's description of the parachute jump that resulted in the injury to his neck to be credible. The Board also notes that the lack of evidence documented in the STRs is not dispositive of this issue and finds the Veteran to be credible in his testimony that he did not report the neck injury. Furthermore, the VA examiner's reliance on the passage of time between the Veteran's service and his diagnosis is not dispositive of this issue and the examiner does not appear to have considered the Veteran's credible statements demonstrating a continuity of cervical spine problems since separation from service, with no significant post-service cervical spine trauma. Finally, the Board notes that the Veteran's claims file includes medical records that include a private medical opinion from a Dr. J.R. in February 2009 that, in part, related the Veteran's cervical spondylosis, stenosis to his service as a paratrooper. On remand the VA examiner must address this opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature, extent and etiology of any cervical spine disability that may be present, to include cervical spondylosis and stenosis. The eFolders and copies of all pertinent records must be made available to the examiner. Following a review of the relevant medical evidence in the eFolders, the medical history (including that set forth above), and the result of the clinical evaluation and any tests that are deemed necessary, the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any current cervical spine disability, to include cervical spondylosis and stenosis, is causally related to the Veteran's parachute jump injury when the rush of air tore off his helmet and jerked his neck. The examiner is instructed to accept as true the Veteran's report of this incident. In addition, the examiner must consider and address the Veteran's credible statements regarding post-injury continuity of cervical spine problems and address the February 2009 private etiology opinion of Dr. J.R. The examiner is requested to provide a rationale for any opinion expressed. 2. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant 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).