Citation Nr: 1804398 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-03 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Kuczynski, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1954 to March 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In January 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript is of record. The record was also held open for 60 days to allow for the submission of additional evidence. The Board remanded the case for further development in June 2017. The case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing systems. Accordingly, any future consideration of this Veteran's case must take into account the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded a VA examination in August 2017 in connection with his claim. The examiner noted that the Veteran had fractured his cervical vertebrae prior to service and stated that there was no evidence of any injury or event during service that aggravated the condition. However, in the rationale, the examiner did not discuss the September 1957 service treatment record noting pain radiating to his neck or the Veteran's report of an injury in service. Therefore, the Board finds that an additional medical opinion is needed. In addition, in the June 2017 remand, the Board directed the AOJ to request private medical records identified during the January 2017 hearing. In particular, the Veteran had indicated that he received treatment from Dr. T., Dr. B., and Dr. M. (initials used to protect privacy). The claims file does not contain treatment records from Dr. B. Nor did the AOJ request such records. Rather, the AOJ's request for records was limited to Dr. T. and Dr. M. Therefore, the AOJ should attempt to obtain such records. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his cervical spine disorder. A specific request should be made for records from Dr. B., who was identified during the January 2017 hearing. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to the August 2017 examiner or, if she is unavailable, to another suitably qualified VA medical professional for a clarifying opinion as to the nature and etiology of the Veteran's cervical spine disorder. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions or statements by the Veteran. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. It should also be noted that the presumption of soundness does not apply. The Veteran's service treatment records include an April 1954 enlistment examination indicating that a clinical evaluation found his spine to be abnormal. Specifically, it was noted that he had a history of a neck injury around 1949 or 1950 that required him to wear a brace for two months, but he did not have symptoms since that time and there was no limitation of motion upon examination. During the January 2017 hearing, the Veteran also testified that he had fractured his neck in 1949, but did not have any additional neck problems until he sustained an injury in service in 1957. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's cervical spine disorder was aggravated by his military service, to include any injury or symptomatology therein. The examiner should specifically address the September 1957 service treatment record noting pain radiating to his neck and the Veteran's own reports of an injury in service. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS 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).