Citation Nr: 1815989 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 14-20 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the cervical spine, (previously evaluated as cervical strain). ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1990 to November 2012. This matter comes before the Board of Veterans' Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction now resides with the RO in Hartford, Connecticut. Within this initial rating decision the RO granted service connection for a cervical strain and rated the disability 10 percent; effective December 1, 2012. Thereafter, in a July 2015 decision, the RO recharacterized and expanded the Veteran's cervical spine disability to include degenerative arthritis of the cervical spine, which was determined to be progression of his original cervical strain. The 10 percent rating was continued. This matter was remanded in December 2015 for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND This matter was remanded in December 2015 to ensure the integrity of the claims file. Specifically, the Board had concerns about the completeness of the record given a February 2015 VA examiner cited to clinical records which were not in evidence. These noted records were from chiropractic treatment occurring in June 2014. Closer inspection of the February 2015 examiner's notations indicates that this June 2014 treatment occurred at a federal facility, namely Naval Branch Health Clinic (NBHC) Groton's GR Chiropractic Clinic. See 2012 and 2013 NBHC Groton Records. That said, of record is a February 2016 medical records request rejection notice for NBHC Groton which indicates the RO's request for records was denied because "Discovery [was] VAMC/Military/Federal." There is no indication of a second attempt to obtain these records by the RO. Review of the record also remains negative for treatment medical records dated after March 2013 from Groton. Of note, the only post-service treatment medical records from this facility in evidence were provided by the Veteran and appear incomplete. In light of the strong indication of outstanding probative evidence, the Board finds that a remand is required. When, as here, VA is put on notice of the existence of potentially relevant federal records, VA must try and obtain these records before deciding the appeal as part of the duty to assist. See 38 C.F.R. § 3.159 (c)(2) and (3); see also Lind v. Principe, 3 Vet. App. 493, 494 (1992); Marcinak v. Brown, 10 Vet. App. 198, 204 (1997); Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). On remand, the RO must go through the appropriate federal channels to obtain any outstanding NBHC Groton records from service separation forward. All outstanding VA and or private treatment medical records must also be associated with the record. Finally, when considering the evidence that was obtained, the RO did not reevaluate the Veteran's service connect cervical spine disability. The analysis was focused on the question as to whether new and material evidence had been submitted. The basis of the continued denial of the increased rating claim appears to have been because the evidence submitted by the Veteran could not be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought and must raise a reasonable possibility of substantiating the claim. None the evidence obtained on Remand was even discussed. Accordingly, the case is REMANDED for the following action: 1. Obtain treatment records from the Naval Branch Health Clinic in Groton, Connecticut from November 2012 to the present. Note, the claims file contains strong indication of treatment from Groton's GR Chiropractic Clinic during the appeal period. See 2012-2013 Groton Clinic Veteran Submissions; see also February 2015 VA Examination Report. If a negative response is received from this facility, the claims file should be properly documented in this regard. 2. Contact the Veteran and provide him with a VA Form 21-4142, Authorization and Consent to Release Information to VA, in order to obtain any private treatment records. Advise the Veteran that he may submit his private treatment records if he so chooses. If a negative response is received from the Veteran, or any private treatment provider, the claims file should be properly documented in this regard. 3. Associate all records of the Veteran's VA treatment medical records with his electronic claims file (VBMS). If a review of these records discloses the existence of other pertinent records under federal control (i.e., VA or military facility as a retiree), such records should be obtained as well. 4. Then readjudicate the appeal. If the benefits sought on appeal are not granted in full, the Veteran should be issued a supplemental statement of the case and provided an opportunity to respond. 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 (2002). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2002), 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).