Citation Nr: 18100010 Decision Date: 03/27/18 Archive Date: 03/27/18 DOCKET NO. 14-34 728 DATE: March 27, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 1 ORDER New and material evidence having been received, the claim of entitlement to service connection for a back and neck disability is reopened. To that extent only, the appeal is granted. FINDINGS OF FACT 1. An August 2006 rating decision denied the Veteran’s claim to reopen a claim of entitlement to service connection for a back and neck disability. The Veteran did not appeal that decision or submit new and material evidence within the one year appeal period. 2. The evidence received since the August 2006 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a back and neck disability. CONCLUSIONS OF LAW 1. The August 2006 rating decision denying reopening of the claim for a back and neck disability is final. 2. New and material evidence has been received; the claim for service connection for a back and neck disability is reopened. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from August 1972 to March 1978, and from June 1980 to November 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, reopened the claim for entitlement to service connection for a back and neck injury. Upon reopening the claim, the RO denied entitlement to service connection for the claimed disability. Despite the RO’s action, the Board must perform its own review of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a back and neck injury before addressing the claim on its merits. By way of history, prior to reopening the instant claim on appeal in the August 2012 rating decision, in September 1988, the Board denied entitlement to service connection for this claimed disability. An August 2006 rating decision denied reopening, finding that the new and material evidence was not submitted sufficient to reopen the claim. The Veteran did not appeal that decision or submit new and material evidence within the one year appeal period. Since that last prior final denial in August 2006, the Veteran submitted additional VA treatment records dated April 2011 and November 2017. In addition, VA conducted a spine examination in August 2014. The Board notes that in November 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the Veteran’s electronic claims file. REMANDED ISSUE The issue of entitlement to service connection for a back and neck disability is remanded for additional development. The Veteran contends that he is entitled to service connection for a back and neck disability. The Veteran was most recently afforded a VA examination for his claimed back and neck disability in August 2014. The examiner provided a diagnosis of multilevel degenerative disc disease, and opined that the Veteran’s back condition was less likely than not incurred in or caused by his active service. The examiner noted that the Veteran had a one-time occurrence documented of his neck while he was in service. His discharge physical examination report noted aches and pains in his neck and back; however, there was no diagnosis. In addition, the Veteran was seen in June 1987 for low back pain, but there was no record of an exact injury. In November 2002, it was noted that the Veteran was a construction worker and was doing heavy manual labor. He was seen in May 2003 for neck pain, as he had fallen on the ice in March 2003, injuring his neck. Based on the review of the Veteran’s claims file, the August 2014 VA examiner concluded that the Veteran’s neck and back injury was more than likely due to his employment as a construction worker, as well as the incident where he slipped and fell on the ice. In a November 2017 VA outpatient record, a physician, O.A., noted that he reviewed the records that were available to him. He further noted that he did not have records prior to 1996 or the Veteran’s service treatment records. The Veteran reported that while on active duty, he pulled and pushed a very heavy vending machine, and he started to develop pain that has continued since then to the cervicothoracic junction. The Veteran further reported that he felt and heard a large pop at that time. Dr. O.A. indicated that the most recent cervical X-rays demonstrated normal alignment of the cervical vertebrae; however, he noted spondylosis from C3-C7 with moderately severe degenerative disc disease unchanged from the previous examination. There was evidence of mild right-sided stenosis at C3-C4, mild left-sided foraminal stenosis at C4-C5, and mild to moderate bilateral foraminal stenosis at C5-C6. Dr. O.A. opined that the Veteran’s back condition was more likely than not connected to the injuries as described by the Veteran, if in fact there is any record of these injuries on his medical records. The opinion provided by Dr. O.A., however, does not provide a complete rationale. Furthermore, Dr. O.A. did not have access to the Veteran’s complete medical records In light of the fact that Dr. O.A., the most recent examining physician of record, did not have access to the Veteran’s complete claims file, as well as the length of time since the Veteran’s last VA examination in August 2014, the Board finds that the Veteran should be afforded a new VA examination in order to determine the nature and etiology of his back and neck disability. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an examination report “if further evidence or clarification of the evidence . . . is essential for a proper appellate decision”). Furthermore, the Board does not have sufficient information and lacks the medical expertise to resolve the discrepancy presented between the August 2014 and November 2017 medical opinions as indicated above. Thus, remand for a VA examination is warranted. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matter is REMANDED for the following action: 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 back and neck. After acquiring this information and obtaining any necessary authorizations, the AOJ should obtain and associate these records with the claims file. The AOJ should obtain any outstanding VA treatment records. 2. The Veteran should be scheduled for a VA examination before an appropriate physician to determine the etiology of his back and neck disability. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner is asked to perform all indicated tests and studies and provide an opinion as to the following: (a) Identify all current back and neck disabilities associated with the Veteran. (b) Is it at least as likely as not (50 percent probability or greater) that any identified back and/or neck disability manifested during, or is the result of, active military service? In rendering the requested opinions, the examiner must consider all evidence of record, including all service treatment records, the Veteran’s statements regarding in-service injury associated with the back, and all prior VA and private examinations. The examiner should also attempt to resolve the discrepancy presented between the August 2014 and November 2017 medical opinions as indicated above A full rationale must be provided for any opinion offered. (Continued on Next Page) 3. After completing all indicated development, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded to the Board. The Veteran 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 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. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel