BVA9501898 DOCKET NO. 93-00 596 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas, received from the Regional Office in Oakland, California THE ISSUE Entitlement to service connection for residuals of an injury of the cervical spine, to include arthritis. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from April 1972 until June 1978. In April 1993, the Board of Veterans' Appeals (the Board) denied service connection for residuals of an injury of the cervical spine, to include arthritis, on appeal from a rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran appealed to the United States Court of Veterans Appeals (the Court). In August 1994, the Court issued a memorandum decision remanding the case to the Board for further proceedings consistent with that decision. REMAND In the April 1993 decision, the Board made four findings of fact and in the Court's August 1994 memorandum decision, it was stated that "[i]n denying entitlement to service connection, the BVA [of the Board] found that: (1) the service medical records were negative for disability of the cervical spine, (2) the appellant currently has extensive abnormalities of the cervical spine, including arthritis, which are not inconsistent with old trauma, and (3) there was no continuity of symptomatology as required." [citation redacted]. The Court agreed that the evidentiary record, as then constituted, supported all three findings but also noted that continuity of symptomatology is not required if there is a chronic disease in service and that the Board failed to make a finding as to whether the veteran had a cervical condition that was chronic during service, by failing to discuss whether the August 1992 medical opinion of Kevin Mitchell, a chiropractor, which related the veteran's current cervical disability to service, constituted a diagnosis of chronic disease during service and, if so, whether such diagnosis could be legitimately questioned. It was also indicated that the Board had improperly rendered a unsubstantiated medical opinion in concluding that residuals of a cervical spine injury would reasonably have been expected to manifest at the time of the inservice injury or shortly thereafter. [citation redacted]. In the April 1993 decision of the Board a pertinent finding of fact held, in part, that the "earliest post service clinical evidence of a disability of the cervical spine does not antedate 1991." In Browder v. Brown, 5 Vet.App. 268, 270 (1993) the Court held that "[u]nder the doctrine of 'law of the case,' questions settled on a former appeal of the same case are no longer open for review." In Browder, supra, the Court held that a prior decision of the Court setting aside a finding of fact of the Board was binding on remand of that case back to the Board. As applied to the instant decision of the Board additional private medical evidence has been received since the decisions of the Board, in April 1993, and of the Court, in August 1994. Although the Board had previously held that a contemporaneous clinical evidence of disability of the cervical spine did not antedate 1991, recently submitted X-ray reports of August 1986 and of March 1990 from the Midland County Hospital District reflect that X-rays disclosed abnormalities of the veteran's cervical spine that were consistent with trauma. The Board need not now determine the significance of the 1986 and 1990 cervical spine X-ray reports inasmuch as in the memorandum decision of the Court it was noted that in addition to being free to introduce additional evidence, which has now been received, the veteran was free to "make duty-to-assist requests under 38 U.S.C. § 5107(a) [and] the BVA should either provide assistance or provide reasons or bases for not providing such assistance." [citation redacted]. In this connection, there has now been received a statement from the veteran in which he specifically requested "duty to assist on my case." Further, the evidentiary record as a whole reflects that the veteran has received post service private clinical treatment from various other sources but that as yet no attempt has been made to obtain all such clinical evidence. In view of the fact that the evidence now antedates the disability of the cervical spine to 1986, less then a decade after service, and the significance of the August 1992 statement of Kevin Mitchell, a chiropractor, (and his more recent November 1992 statement) is at issue, the case must be REMANDED for the following actions: 1. The veteran should be requested to execute and return the necessary authorization forms for obtaining all private clinical records of treatment, evaluation, observation or examination of the veteran since military service from the following: (a) The Care Chiropractic Center at 4706 North Midkiff, Midland, Texas 79705 or 4400 North Midland Drive, Suite 406, Midland, Texas 79707; (b) The Midland County Hospital District at 2200 West Illinois, Midland, Texas 79701; (c) The Tall City Chiropractic facility at 502 North Big Spring, Midland, Texas 79701; (d) The Midland Chiropractic Clinic, Post Office Box 10565, Midland, Texas 79701; (e) The Imaging Center at 2300 West Michigan Avenue, Midland, Texas 79701; (f) Dr. Bal K. Khandelwal of the Arthritis and Osteoporosis Center at 2301 West Michigan, Midland, Texas 79701; (g) The Texas Institute of Sports Medicine at 2706 West Cuthbert, Building C, Midland, Texas 79701. When and if obtained, those records should be associated with the claims folder. The RO should review the private clinical records obtained to determine whether there may exist any additional private clinical records not associated with the claims folder and, if so, additional efforts should be made to obtain such records. 2. The veteran should be afforded a comprehensive VA orthopedic examination to determine the nature, cause, and etiology of any disability of the cervical spine that the veteran may now have. Specifically, after a review of the claims folder, including any additionally obtained private clinical records, whether the veteran had chronic disability, to include spondylosis or arthritis of the cervical spine during military service, particularly as a result of any injury during military service. Detailed reasons and bases for all diagnoses and opinions reached should be legibly recorded. All the veteran's subjective complaints and all objective findings should also be recorded. All necessary tests, including X-rays of the cervical spine, should be conducted if necessary. The claims folder must be made available to the examiner prior to the examination in order to facilitate study of this case. Thereafter, the RO should readjudicate the issue on appeal in light of the additionally obtained evidence in accordance with the instructions of the Court. If the claim remains denied, the veteran and his representative should be issued a supplemental statement of the case specifying the reasons and bases for the denial and they should be afforded the appropriate period of time within which to respond thereto, at their option. Then, if otherwise in order, the case should be returned to the Board for further appellate adjudication after compliance with all applicable appellate procedures. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (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(b) (1993).