Citation Nr: 1803122 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 09-26 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a cervical spine disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD K. Lynch, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2008, the Veteran testified during a hearing before a Decision Review Officer at the RO. Copies of the November 2008 hearing transcript have been associated with the claims file. In March 2011, The Veteran testified before a Veterans Law Judge at a Travel Board hearing. Copies of the March 2011 hearing transcript have been associated with the claims file. In March 2012, the Board remanded the Veteran's claim for further development and a VA examination. In January 2013, the Board denied the Veteran's claim. In October 2013, the Veteran and the Secretary of VA filed a Joint Motion for Remand (Joint Motion) with the United States Court of Appeals for Veterans Claims (Court). A November 2013 Order of the Court remanded the issue to the Board for development consistent with the Joint Motion. In June 2014, the Board again denied the Veteran's claim. In April 2015, the Veteran and the Secretary of VA filed another Joint Motion with the Court. An April 2015 Order of the Court remanded the issue to the Board for development consistent with the Joint Motion. In June 2015, the Board remanded the Veteran's claim for further development and a VA examination. In February 2016, the Board again denied the Veteran's claim. In August 2017, the Veteran and the Secretary of VA filed a Joint Motion with the Court. A September 2017 Order of the Court remanded the issue to the Board for development consistent with the Joint Motion and as more fully set forth below. In a November 2017 letter, VA notified the Veteran of his right to obtain a new hearing because the Veterans Law Judge who presided over the March 2011 hearing is no longer employed by the Board. In December 2017, the Veteran responded that he did not want another hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran believes his current cervical spine condition had its onset during service or is the result of injuries sustained therein, to include being hit in the head with a gun turret and falling after a blackout. The August 2017 Joint Motion noted the Board decision conceded an injury in service because the Veteran sought treatment for muscle pain in the neck during service. In addition, the February 2016 Board decision conceded a current cervical spine condition because VA treatment records confirmed this condition's existence. Id. at p. 8. In finding that "the record lacks competent evidence of a nexus" between the Veteran's in-service injury and his current condition, the February 2016 Board relied in part on an October 2015 VA examination. The examiner opined that the Veteran's "injuries in the service seem to have been acute and mild without evidence to show that they caused or would lead to a chronic neck condition like the currently diagnosed neck condition." Id. at p. 2. The October 2015 VA examiner also stated, however, that the Veteran "notes that he had [a] herniated disc diagnosed while in prison in the 1980's." Id. The examiner noted that no medical records discussed this injury, but that "it is possible that his chronic neck condition began at that time which was after he left the service." Id. Notably, in May 2012, the same VA examiner stated that the Veteran "denie[d] any injuries to neck after the service." Id. at 2. Because the October 2015 VA examiner appeared to opine that the Veteran's current condition could be related to his herniated disc, a medical opinion should be obtained as to whether the Veteran's in-service injury could have led to his herniated disc, and eventually his current disability. Accordingly, an addendum opinion is warranted that fully addresses whether the Veteran's diagnosed herniated disc is related to his in-service injury and, if so, whether the herniated disc is related to his current disability. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and his representative and request their assistance in identifying any outstanding relevant treatment records from VA or private treatment providers. The AOJ should make reasonable attempts to obtain all relevant outstanding evidence and associate it with the other evidence of record. 2. After all outstanding relevant evidence is associated with the record, the AOJ should obtain an addendum to the October 2015 opinion. a) The examiner should provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's diagnosed herniated disc (first documented in VA treatment records dated in February and March 2009 indicate a cervical herniated disc at C5 or C7. VA x-rays dated in June 2009 indicated degenerative changes present with intervertebral disc space narrowing and osteophyte formation at the C5 through C7 level) is related to his in-service injuries. b) If so, the examiner should provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current cervical spine disability is related to the Veteran's diagnosed herniated disc. c) The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's current cervical spine disability is otherwise related to his in-service injuries. The examiner should consider the following as facts: A review of the Veteran's STRs indicates he sought treatment for neck pain in April 1975 and May 1975. On physical examination, there was no swelling, deformity or limited motion. There was some tenderness of the trapezius muscle group and some muscle spasm noted on the right side. In May 1975, the examiner listed a diagnosis of muscle strain. In June 1975, the Veteran sought treatment after falling down stairs for contusions of the face, specifically, the right eye. The records indicate complaints of pain behind the right eye in the "right brow region." No mention was made of neck pain or cervical spine concerns at that time. In his February 1977 examination report upon separation from service, no abnormality of the cervical spine or neck was noted and the Veteran indicated he was in very good health. The first post-service evidence of treatment for neck pain was provided by the Veteran in the form of a December 1994 letter from the Texas Department of Criminal Justice Health Services Division that indicated treatment for wrist, hand and back pain in 1993. The Veteran was seen by a neurologist and referred to an orthopedic clinic. The letter also indicated treatment for neck, hand and arm pain in 1994. The next medical evidence of record is from February 2007 when the Veteran sought treatment at VA for neck pain radiating to the right arm with numbness. He was referred to a neurologist. An x-ray of the cervical spine indicated mild degenerative disease in the disc height at C5-C6 and C6-C7 with mild degenerative osteophytosis and mild cervical spondylosis at the same levels. A VA treatment record dated May 2008 indicated bilateral carpel tunnel syndrome status post surgeries with neck pain and right upper extremity peripheral neuropathy. VA treatment records dated in February and March 2009 indicate a cervical herniated disc at C5 or C7. VA x-rays dated in June 2009 indicated degenerative changes present with intervertebral disc space narrowing and osteophyte formation at the C5 through C7 level. The bones and soft tissues were found to be within normal limits. The examiner must discuss the medical rationale for all opinions expressed, to include citing to specific evidence in the claims file or to medical literature or treatises. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should state why that is the case. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After the above development has been completed, the AOJ must readjudicate the claim for entitlement to service connection. If the benefit sought remains denied, the AOJ must provide the Veteran and his representative with a supplemental statement of the case and 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. §§ 5109B, 7112 (2012). _________________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).