Citation Nr: 0810823 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-04 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for cervical spine disability. 2. Entitlement to service connection for a cervical spine disorder as secondary to service-connected low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served in the U. S. Navy from March 1990 to June 1994. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating determinations of the VA Regional Office in St. Petersburg, Florida that denied service connection for a cervical spine disorder. Following review of the record, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The record reflects that service connection for degenerative joint disease of the cervical spine, claimed as upper back and neck condition, was denied by rating decision dated in December 2002. The veteran did not appeal this determination and it became final. See 38 C.F.R. § 20.1103 (2007). Correspondence dated in May 2004 was received indicating that he wished to reopen his claim for a neck disorder. He also stated that he had neck problems secondary to his service- connected back condition. The Board notes that in its rating decision dated in August 2004, the RO treated the matter as an original claim, and also denied it on a secondary basis. A notice of disagreement to the rating decision was received in November 2004. The veteran elected Decision Review Officer review. In a decision dated in December 2004, the Decision Review Officer denied the claim on a de novo basis without addressing the secondary aspect of the issue. The Board also notes that while a cursory reference was made to the 2002 final decision as well as service connection on a secondary basis, and appropriate regulations were provided, the RO essentially denied the claim de novo in the Statement of the Case dated in December 2004. The Board points out, however, that whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed by the Board before the underlying claim may be considered. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, regardless of the RO's actions, the Board must initially address the question of whether "new and material" evidence has been presented sufficient to reopen the claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Therefore, the issue of entitlement to service connection for cervical spine disability on a direct basis has been characterized as such on the title page. The veteran was most recently examined for VA compensation and pension purposes in August 2004. The examining nurse practitioner stated that he or she could not relate the cervical spine disorder to the lumbar spine disability or to the event that created the problem without resorting to speculation. This examination is inadequate for adjudication purposes. The Board is therefore of the opinion that the appellant should be re-examined by a specialist for review of the record and a medical opinion. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Service connection may be granted for a disability that is proximately due to or the result of an established service- connected disorder. 38 C.F.R. § 3.310 (2007). This includes disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Board observes that the VA examination in 2004 did not consider whether or not the veteran's cervical spine disorder had been made chronically worse by the service-connected back condition and this must be addressed. The veteran presented testimony on personal hearing in February 2008 that he received treatment at the VA Sarasota and Bay Pines, Florida facilities. He stated that he had been told by his VA treating physician that his neck disorder was related to back disability. The appellant also referred to private treatment for neck disability. Review of the record discloses that VA outpatient records dating through July 2006 are of record. The record thus indicates that additional relevant evidence in support of the veteran's claim may exist or could be obtained from a VA facility. See Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). Therefore, VA treatment records dating from August 2006 to the present should be requested and associated with the file. Finally, review of the record discloses that the veteran has not been provided notice of the Veterans Claims Assistance Act (VCAA) of 2000, Pub. L. No.106-475, 114 Stat.2096 (2000) with respect to the issue of entitlement to service connection for cervical spine disability as secondary to the service-connected back disorder. The VCAA and its implementing regulations require that VA provide specific notice to claimants regarding information needed to complete an application for benefits, as well as specific notice regarding information or evidence required to substantiate a claim. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The veteran must therefore be given the required notice with respect to this issue on appeal. Accordingly, the case must be remanded in order to comply with the statutory requirements of the VCAA in this regard. As well, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision which held that in the context of a claim to reopen, notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Accordingly, the case is REMANDED for the following actions: 1. The RO must review the claims file and insure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2007), the implementing regulations found at 38 C.F.R. § 3.159 (2007), and any other legal precedent are fully complied with and satisfied with respect to the issue of service connection for a cervical spine disorder on a secondary basis. The veteran should be told to provide any evidence in his possession that is pertinent to his claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Charles v. Principi, 16 Vet. App. 370, 373-374 (2002). He should be advised of what evidence is required to reopen his claim of service connection for a cervical spine disorder since the promulgation of Kent v. Nicholson, 20 Vet. App. 1 (2006). 2. The veteran should be contacted and requested to identify all healthcare providers who have treated him for cervical spine disability. He should be requested to complete and return the appropriate release forms so that VA can obtain any identified evidence. 3. Retrieve copies of all of the veteran's VA treatment records dating from August 2006 to the present from the VA Sarasota and Bay Pines facilities and associate them with the claims folder. 4. After an appropriate period of time for all available records and/or responses from the above have been received, the veteran should be scheduled for examination by a VA neurologist. The claims file and a copy of this remand must be made available to and be reviewed by the examiner. The examiner should indicate if the claims folder was reviewed. The examination report should reflect consideration of the veteran's medical history, current complaints, and other assertions, etc. Based upon review of the evidence and physical examination, the examiner should provide opinions as to a) whether it is at least as likely as not that the veteran sustained injury to the cervical spine in service to which current neck disability is reasonably related, b) whether it is at least as likely as not that the current cervical spine disability is secondary to the service-connected degenerative disc disease of the lumbosacral spine with lumbosacral strain and c) whether the veteran's neck disorder has been made chronically worse by the service-connected low back disorder. If aggravation is found, the examiner should offer an assessment of the extent of additional disability resulting from aggravation by the low back condition. The findings and well-rationalized opinions to the questions presented should be set forth in detail. 5. The veteran should be advised of the consequences of failure to report for examination. 6. The RO should ensure that the medical report requested above complies with this remand. If the report is insufficient, or if any requested action is not taken or is deficient, it should be returned to the examiner for correction. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After taking any further development deemed appropriate, re-adjudicate the issues on appeal. If the benefit is not granted, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board. 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ F. JUDGE FLOWERS 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) (2007).