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Service Connection For A Back And Neck Disorder :)


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Guest allanopie

Citation NR: 9606465

Decision Date: 03/13/96 Archive Date: 03/16/96

DOCKET NO. 91-44 204 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Phoenix,

Arizona

THE ISSUE

Entitlement to service connection for a back and neck

disorder, claimed as residuals of motor vehicle accidents

incurred in service.

REPRESENTATION

Appellant represented by: Arizona Veterans Service

Commission

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Charles G. Sener

INTRODUCTION

The appellant had active service from March 1968 to December

1971.

In a March 1972 rating decision, the Department of Veterans

Affairs (VA) Detroit, Michigan, Regional Office denied

service connection for residuals of a motor vehicle accident,

including a neck and back disorder. The appellant received

notification of that rating decision in March 1972, and he

did not file a notice of disagreement with that rating

decision. Therefore, the March 1972 rating decision became

final in March 1973, one year after the VA's notification to

the appellant of that rating decision.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from November 1990 and June 1991 rating

decisions of the VA Phoenix, Arizona, Regional Office (RO),

which denied a claim of entitlement to service connection for

a back and neck disorder, claimed as residuals of motor

vehicle accidents incurred in service, without determining

whether the appellant had submitted new and material evidence

to reopen the March 1972 rating decision pursuant to

38 U.S.C.A. §§ 7105, 5108 and 38 C.F.R. § 3.156(a).

A December 1991 Board decision denied the appellant's claim

also without considering whether new and material evidence

was submitted. In an Unopposed Motion for Remand by the

Appellee, however, the United States Court of Veterans

Appeals (Court) vacated the Board's decision and remanded the

claim to the Board for compliance with the Court's

instructions. Switzer v. Principi, U.S. Vet.App. No. 92-450

(Dec. 12, 1992). The Board remanded the case to the RO for

additional evidentiary development in July 1993, including a

request for orthopedic review of the record and medical

examination, if deemed appropriate, to determine whether

there is a causal relationship between the appellant's

current back and neck disorder and service. Consequently, an

October 1995 rating decision again denied the claim. The

case was returned and docketed at the Board, and is now ready

for appellate review and consideration.

REMAND

The appellant contends that service connection is warranted

for a back and neck disorder because he believes that

whiplash he suffered in service as a result of motor vehicle

accidents caused him to develop arthritis in his spine. To

support his assertion, he has submitted outpatient Arizona

Department of Corrections medical treatment records,

variously dated from November 1987 to August 1993, showing

treatment for cervical and thoracic arthritis, along with a

statement relating arthritis of the spine to a whiplash

injury suffered in a 1969 motor vehicle accident. Also of

record are private medical statements, dated in October 1990

and May 1991, from C.E.R., D.C., describing medical treatment

received in 1979 for apparent residuals of a 1969 motor

vehicle accident, and a May 1991 opinion that "t is

reasonable to believe that the trauma [the appellant]

sustained [in service] is directly related to the

degeneration that is now occurring in his spine."

Although review of the Court's December 1992 Motion for

Remand did not include an express finding relating to whether

new and material evidence was submitted to reopen the March

1972 rating decision, the Board concludes that the appellant

did in fact submit new and material evidence bearing directly

and substantially upon the specific matter under

consideration, which is neither cumulative nor redundant, and

which by itself or in connection with evidence previously

assembled is so significant that it must be considered in

order to fairly decide the merits of the claim. 38 C.F.R.

§ 3.156(a) (1994). This does not mean that the claim will

always be allowed, just that the case will be reopened and

the new evidence will be considered in the context of all the

other evidence for a new determination of the issues.

Smith v. Derwinski, 1 Vet.App. 178, 179-80 (1991).

In its December 1992 Motion for Remand, the Court explicitly

requested that the Board seek to obtain additional medical

records, consider and specifically discuss the October 1990

and May 1991 private medical statements, from C.E.R., D.C.,

and obtain a physical examination of the appellant, if deemed

warranted, along with an advisory medical opinion to address

whether the appellant's trauma in service caused arthritis.

Furthermore, the Board was requested to explain the reasons

and bases for its decision, including an explanation as to

why it is not deemed warranted or reasonably feasible to

obtain a physical examination. Finally, any medical

conclusions reached should be supported by a medical basis

such as an advisory opinion or recognized medical

treatise(s). Colvin v. Derwinski, 1 Vet.App. 171 (1991).

Review of the appellant's claims file reveals that the RO was

able to obtain copies of Arizona Department of Corrections

outpatient medical treatment records, dated from November

1987 to August 1993, and medical records from the CIGNA

health plan, dated from March 1985 to August 1986.

Unfortunately, the RO was unable to obtain any additional

private medical records, and it was noted in May 1995 that

the Taos Police Department, Taos County Sheriff, and New

Mexico State Police had no records concerning the appellant's

February 1969 motor vehicle accident.

Review of the pertinent medical evidence of record reveals

private medical records, from the appellant's previous

employer, dated in November 1966 and April 1972, showing

treatment for dorsal myositis.

Although the appellant indicated in a January 1968 report of

medical history that he had had recurrent back pain and was

unable to lift anything or stand for very long, a January

1968 service enlistment report of medical examination

disclosed normal clinical evaluation of the appellant's

spine, with no defect or abnormality noted.

Service medical records showed that the appellant was

hospitalized in February 1969 for three days for residuals of

a motor vehicle accident. A February 1969 service medical

record listed final diagnoses of concussion of brain, simple

wounds of face and neck, and contusion of left buttock.

A February 1970 service report of medical examination

divulged normal clinical evaluation of the appellant's spine,

with no defect or abnormality listed. Furthermore, it was

noted that the appellant had been involved in a previous

motor vehicle accident, with loss of consciousness secondary

to a concussion; but it was specifically stated that the

appellant had had no complications or problems since that

time.

A June 1971 service radiographic report for a sinus series,

which was normal, listed a complaint of neck discomfort. It

was recorded in a July 1971 service medical record that the

appellant had been in a motor vehicle accident, hitting his

face against the steering wheel, with complaints of pain and

coughing up blood.

A November 1971 service separation report of medical

examination demonstrated normal clinical evaluation of the

appellant's spine, with no defect or abnormality disclosed.

However, an examiner reported that the appellant had scars on

his face that were not previously of record.

Additional private medical records, from the appellant's

former employer, dated in December 1971, showed a complaint

of an ache between the shoulders and stiffness of the neck.

A history of whiplash injury was also recorded. In January

1972, the appellant stated that his back had hurt since being

re-hired; and in May 1972 he also complained of back pain.

At a January 1972 VA report of medical examination, the

appellant stated that he had been in a motor vehicle accident

in February 1969 and that after returning to his civilian

occupation he had developed a knot in the back of his neck

along with burning between the shoulder blades. He denied

low back pain, and related that he experienced trouble with

his neck after heavy lifting. Physical examination of the

appellant's back and neck disclosed no evidence of spasticity

or point tenderness. An examiner recorded normal range of

cervical, dorsal, and lumbar spinal mobility, with bilateral,

equal straight leg raising. Also of record are January 1972

VA radiographic reports demonstrating normal studies of the

cervical and dorsal spine. Finally, the January 1972 VA

report of medical examination indicated that the appellant

had a "history of neck and upper back injury; no sequela

found."

A June 1972 private medical statement, from F.J.H., M.D.,

indicated that the appellant was receiving care for a back

problem.

CIGNA health plan records, for the period from March 1985 to

August 1986, showed treatment for complaints of headaches and

chronic neck pain. Also, an April 1985 radiologic report

noted a clinical diagnosis of chronic neck pain along with a

history of whiplash. Findings from that radiologic report

revealed straightening of curvature and reversal of curvature

at C4/C5, narrowed interspace at C6/C7, with large

hypertrophic changes, both anteriorly and posteriorly, and

bilateral posterior spurs causing deformity of the neural

foramina.

As previously stated, a November 1987 Arizona Department of

Corrections medical record included a medical opinion that

the appellant had thoracic and cervical arthritis as a result

of whiplash from a 1969 motor vehicle accident. Furthermore,

private medical statements, from C.E.R., D.C., dated in

October 1990 and May 1991, also suggested that the

appellant's degeneration in his spine is related to the

February 1969 motor vehicle trauma. Unfortunately, the Board

notes that neither opinion cited to medical authority or

investigation, including medical treatise(s), to support its

conclusion. In light of the foregoing, the Board concludes

that a VA medical examination along with a thorough and

conscientious review of the appellant's entire medical record

relating to a back and neck disorder should be performed.

Although a November 1994 VA report of compensation and

pension examination indicated that the appellant's records

were reviewed, without a physical examination, the Board

notes that no reasonable explanation was given for not

affording the appellant a physical examination. While the

Board is aware that the appellant may be incarcerated,

certainly this is not adequate justification for not

performing a medical examination. Furthermore, the November

1994 VA report included review of the appellant's service

medical records, but it failed to note that the appellant

received treatment in July 1971 for residuals of a second

motor vehicle accident. Moreover, while a VA physician

opined that it was "highly unlikely, but distantly remote

that [the appellant's] current symptomatology could be

related to [injuries received in service,]" the Board

observes that the VA physician failed to discuss the

significance, or lack thereof, of the post service medical

records showing treatment for complaints of back pain and a

diagnosis of arthritis in November 1987, almost 16 years

after the appellant's separation from service. Specifically,

the VA physician did not address the November 1987 Arizona

Department of Corrections medical opinion and the statements

of C.E.R., D.C., dated in October 1990 and May 1991, listed

above, attributing the appellant's current spine disorder to

whiplash from a February 1969 motor vehicle accident.

38 C.F.R. § 3.304© (1994) indicates that development of

evidence in connection with claims for service connection

will be accomplished when deemed necessary, and 38 C.F.R.

§ 4.2 (1994) notes that if an examination report does not

contain sufficient detail, then the report should be returned

as inadequate for evaluation purposes. Inasmuch as the Board

is prevented from rendering medical conclusions, which should

be supported by a medical basis such as an advisory opinion

or recognized medical treatise(s) (see Colvin v. Derwinski,

1 Vet.App. 171 (1991)), the Board determines that the

November 1994 VA report of compensation and pension

examination is inadequate for evaluation purposes.

The Court has held that the VA's duty to assist the appellant

in obtaining and developing available facts and evidence to

support his claim includes obtaining adequate VA medical

examinations if existing medical information is insufficient

for evaluation purposes. Littke v. Derwinski, 1 Vet.App. 90

(1990). Therefore, this case is REMANDED to the RO for the

following actions, which should be performed in the most

efficacious manner that is deemed feasible:

1. The appellant should be afforded an

examination by an orthopedic specialist

who has not previously reviewed the

appellant's claims file, if possible, in

accordance with the VA's Physician's

Guide for Disability Evaluation

Examinations, in order to allow the RO to

ascertain the nature and severity of

disabilities in the appellant's spine.

If it is determined that a medical

examination is not deemed warranted or

reasonably feasible, the rationale for

that determination must be explicitly

articulated.

All indicated special studies should be

conducted, including x-ray examination

and both active and passive range of

motion testing, if not medically

contraindicated.

The examiner should be requested to

express an opinion as to the etiology of

the appellant's current back and neck

disorder, diagnosed as arthritis in 1987,

particularly as to whether it is

proximately due to or the result of motor

vehicle accidents that occurred in

service in February 1969 and July 1971.

The examiner must review a copy of the

REMAND and the appellant's claims folder

prior to the examination, with particular

attention given to the November 1987

Arizona Department of Corrections medical

opinion and the statements of C.E.R.,

D.C., dated in October 1990 and May 1991,

attributing the appellant's current spine

disorder to whiplash from a February 1969

motor vehicle accident.

The examiner's report should also include

a complete rationale, with supporting

authority or investigation, for all

conclusions reached.

2. Following completion of the foregoing,

the RO must review the claims folder and

ensure that all of the foregoing development

actions have been conducted and completed in

full. If any development is incomplete,

appropriate corrective action is to be

implemented. Specific attention is directed

to the examination report. If the

examination report does not include adequate

responses to the specific opinions requested,

the report must be returned to the examiner

for corrective action. 38 C.F.R. § 4.2

(1994) ("if the [examination] report does not

contain sufficient detail, it is incumbent

upon the rating board to return the report as

inadequate for evaluation purposes."). Green

v. Derwinski, 1 Vet.App. 121, 124 (1991);

Abernathy v. Principi, 3 Vet.App. 461, 464

(1992); and Ardison v. Brown, 6 Vet.App. 405,

407 (1994).

After the above requested actions have been completed, the RO

should review the appellant's claim with regard to the

additional evidence obtained. If the benefit sought on

appeal remains denied, a supplemental statement of the case

should be furnished to the appellant and his representative.

They should be afforded a reasonable period of time to

respond. Thereafter, the case should be returned to the

Board for further appellate consideration.

The purpose of this REMAND is to obtain additional medical

evidence and to ensure that the appellant receives his

procedural due process rights. No opinion, either legal or

factual, is intimated as to the merits of the appellant's

claim by this REMAND. He is not required to undertake any

additional action until he receives further notification from

VA.

JACK W. BLASINGAME

Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures

Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741

(1994), permits a proceeding instituted before the Board to

be assigned to an individual member of the Board for a

determination. This proceeding has been assigned to an

individual member of the Board.

Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the

Board of Veterans' Appeals is appealable to the United States

Court of Veterans Appeals. 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(:)

(1995).

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