Citation Nr: 1806210 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-30 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected left shoulder and bilateral knee disorders. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from December 1987 to April 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in June 2013. A transcript of the hearing is associated with the Veteran's claims folder. Subsequently, the Board remanded this appeal for additional development in September 2014. After that development was completed, the Board issued a decision denying this appeal in August 2015. In May 2017, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision. 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 his cervical spine disability is due to an August 1988 "water accident." He was admitted to the Naval hospital in Rota, Spain. An "Inpatient Admission/Disposition Record," provides an admission diagnosis of "neck sprain." However, the Veteran has stated that he suffered a "fracture" of his neck, which required several weeks of hospitalization at the U.S. Naval hospital in Rota, Spain. In light of this, the Court determined that the VA failed in its duty to assist the Veteran by failing to obtain these records. The Board finds that the RO must make all appropriate requests to obtain these hospital records. The Board recognizes that the RO made multiple requests to the National Personnel Records Center (NPRC). Because this case has been remanded from the Court, the Board finds that the requests for records should be directed to the Naval Hospital in Rota, Spain as well as to the National Archives and Record Center, where military hospital records are routinely archived (https://www.archives.gov/st-louis/military-personnel/public/active-duty-medical-records.html). In each case, the RO must specifically request in-patient records for the period from August 1, 1988 to December 31, 1988. Regardless of whether additional records are located, the RO should get an addendum opinion from the October 2014 VA examiner. The examiner must address any and all new evidence obtained, as well as the October 2017 correspondence submitted by Dr. P.F.W., the September 2017 electromyelogram (EMG), and subsequent October 2017 MRI. The examiner must also address the statements from the Veteran regarding having incurred a neck fracture in service. Accordingly, the case is REMANDED for the following action: 1. Make all appropriate requests to obtain the U.S. Naval hospital records in Rota, Spain, pertaining to the Veteran's August 1988 in-service "water accident." Due to this being a Court remand, the requests should be directed to the Naval Hospital in Rota, Spain as well as to the National Archives and Record Center, and any other appropriate repository. The AOJ must document all efforts made to obtain the requested records. If the records are not available, then document the claim file to that effect and notify the Veteran. 2. After the Naval Hospital records are obtained, or they are determined to be lost or destroyed, then request an addendum opinion from the October 2014 VA examiner. The clinician must address any and all new evidence obtained, as well as the October 2017 correspondence submitted by Dr. P.F.W., the September 2017 electromyelogram (EMG), and subsequent October 2017 MRI. Additionally, the clinician is advised that the Veteran is competent to report injuries and symptoms and that his reports MUST be considered in formulating the requested opinion, and MUST be addressed in the examination report. If the 2014 VA examiner is no longer available, then forward the claims file to another similarly qualified VA clinician. 3. After completion of the above, readjudicate the issue on appeal and determine if the benefits sought can be granted. If the benefit sought remains denied, then furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further 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). (CONTINUED ON THE NEXT PAGE) 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 (2012). _________________________________________________ Paul Sorisio 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).