Citation Nr: 0717953 Decision Date: 06/14/07 Archive Date: 06/26/07 DOCKET NO. 05-28 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION The veteran had active service from January 1975 to July 1975, from May 1984 to March 1987 and from December 1990 to April 1991, as well as additional service in the Air Force Reserves. This matter originally came before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, that denied the benefits sought on appeal. A July 2006 BVA decision affirmed the RO's denial of the benefits sought on appeal. The veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and in an Order dated in February 2007, the Court granted a Joint Motion for Remand filed in the case that requested the Board's decision be vacated. The case was subsequently returned to the Board for further appellate review. REMAND A preliminary review of the record upon return of the claims file from the Court discloses that the Joint Motion for Remand stated that the VA did not satisfy its duty to assist the veteran in the development of his claims under 38 C.F.R. § 3.159 in that he was not provided a VA examination in connection with his claim. The Joint Motion noted that there was evidence that tended to indicate that the veteran's current disabilities may be associated with service and that under such circumstances the need for a VA examination was demonstrated. Therefore, in order to comply with the Court's Order in this case, the case will be returned to the RO to afford the veteran a VA examination in order to obtain an opinion as to the etiology of his currently diagnosed lumbar, cervical and left shoulder disorders. In addition, the veteran's attorney submitted additional medical evidence for consideration in connection with the veteran's current claims. However, that evidence was received from the veteran's attorney without a waiver of initial RO consideration of that evidence, as is the veteran's right. See 38 C.F.R. § 20.1304(c). Therefore, since the evidence was submitted by the veteran's attorney without such a waiver, the case must be returned to the RO for consideration of that additional evidence. Therefore, in order to give the veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. This case is being returned to the RO via the Appeals Management Center (AMC), in Washington, D.C., and the veteran will be notified when further action on his part is required. Accordingly, this case is REMANDED for the following action: The veteran should be afforded an examination of his lumbar and cervical spine, as well as his left shoulder by an orthopedist to ascertain the nature and etiology of any disorders that may be present. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, including service medical records and medical records dated following separation from service, including the January 2007 opinions from Thomas Dunn, M.D. and Craig N. Bash, M.D. Following this review and the examination, the examiner is requested to respond to the following questions: (1) Given that some of the veteran's treating health care practitioners have suggested that the veteran had pre-existing disorders that were aggravated during service, for example, the January 2003 statement from Dr. Dunn refers to "aggravation of underlying degenerative changes," the September 2004 statement from Richard Washinsky, M.D. states the veteran had severe degenerative disc disease which was aggravated by service and a September 2004 statement from Steven Chiaerello, D.C. which relates that service activity "contributed to the underlying degenerative changes accompanying aggravations," did the veteran enter service with any pre-existing disorders of the lumbar or cervical spine or of the left shoulder? Please explain your opinion as to whether the veteran did or did not enter service with pre-existing lumbar, cervical and left shoulder disorders. (2) If the veteran did enter service with pre-existing lumbar, cervical and/or left shoulder disorders, was there an increase in severity of the lumbar, cervical and/or left shoulder disorders? Please explain. (3) If there was an increase in the severity of any pre-existing lumbar, cervical and/or left shoulder disorders, was the increase in severity a chronic worsening of the underlying disability or the natural progress of the disability? Please explain. (4) If the veteran did not enter service with pre-existing lumbar, cervical and/or left shoulder disorders, is there any clinical evidence demonstrating the presence of lumbar, cervical or left shoulder disorders during service, and if not, when were lumbar, cervical and/or left shoulder disorders first clinically manifested? (5) Is any currently diagnosed lumbar, cervical and/or left shoulder disorder causally or etiologically related to service? Please explain your rationale in answering this question. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the veteran's claims file or in the alternative, the claims file must be made available to the examiner for review in connection with the examination. 2. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence, including all evidence associated with the claims file subsequent to the October 2005 Supplemental Statement of the Case. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development and to comply with the Court's Order in this case, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ Joaquin Aguayo-Pereles Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 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) (2006).