Citation Nr: 0813152 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 05-35 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected residuals of sacroiliac injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from July 1943 to December 1945. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the VA Regional Office (RO) in Detroit, Michigan that denied service connection for a cervical spine disorder. The Board granted a motion in October 2006 to advance this case on the docket due to the veteran's age. The Board denied the veteran's claim in November 2006. Thereafter, the appellant filed an appeal to the United States Court of Appeals for Veterans Claims (Court). The veteran's representative and VA's General Counsel filed a joint motion to vacate the Board's 2006 decision. By Order dated in February 2008, the Court granted the joint motion and remanded the case to the Board for further consideration and readjudication. In correspondence dated and received in January 2007, the veteran requests an increased rating for service-connected residuals of sacroiliac injury. This matter is not properly before the Board for appellate review at this time and is referred to the RO for appropriate consideration. 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 veteran asserts that he now has disability of the cervical spine that is the result of injury in service, or is causally related to service-connected residuals of sacroiliac injury. The record discloses that he was afforded an examination in March 2005 by a VA nurse practitioner who essentially found that the issue could not be resolved without resorting to speculation. The veteran's private physician, J. L. S., D.O, submitted statements received and/or dated in February 2005 and September 2006, respectively, attributing cervical spine disability to an airplane accident in 1945 in service. In the February 2008 joint motion, the parties sought to vacate the Board's November 2006 decision on the basis that it did not provide an adequate statement of reasons and bases to enable the claimant to understand why the claim had been denied, given the favorable evidence received from the appellant's private physician. Essentially, it was pointed out that the VA clinician who conducted the VA examination in 2005 was a nurse practitioner, and not a physician as the Board stated in its decision, and that the opinion provided at that time was given greater weight in denying the claim. It was explained that it was not clear if the Board would have placed as much probative weight on the VA's 2005 opinion had it been cognizant that it was relying on the opinion of a nurse practitioner, and not to a physician. It was thus agreed by the parties that the statement of reasons and bases was deficient, and that the Board erred in its reasons and bases by not discussing whether the probative value that it assigned to the 2005 examination was contingent on whether the examiner was a physician, as opposed a nurse practitioner, in addition to repeatedly misconstruing the evidence itself. The Court stated that on remand, VA was obligated to conduct a critical examination of the justification for its decision and set forth adequate reasons and bases for its findings and conclusions on all material issues of fact and law presented on the record, as well as comply with all provisions of the Veterans Claims Assistance Act of 2000 (VCAA). Under the circumstances, the Board finds that a special examination by a VA orthopedist is warranted for a more definitive and clarifying opinion to ascertain whether or not the veteran currently has cervical spine disability as the result of injury in service, or whether it is related to service-connected disability. The fulfillment of the VA's statutory duty to assist includes affording a VA examination by a specialist when indicated, conducting a thorough and contemporaneous medical examination, and providing a medical opinion, which takes into account the records of prior medical treatment, so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). 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. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). He should also be notified regarding the criteria for rating a disability or establishing an effective date should service connection be granted. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. The veteran should be scheduled for a spine examination by a VA orthopedist. All indicated tests and studies should be performed, and clinical findings should be reported in detail and correlated to a specific diagnosis. The claims file and a copy of this remand should be made available to the physician designated to examine the appellant. In a narrative format, a comprehensive clinical history should be obtained. The examination report should include a discussion of the veteran's documented medical history and assertions. Based on a thorough review of the evidence of record, the examiner should provide opinions, with complete supporting rationale, as to whether it is at least as likely as not (50 percent probability or better) that the veteran now has a cervical spine disorder a) dating from an injury in service; b) secondary to service-connected residuals of sacroiliac injury; and/or c) whether the cervical spine disorder has been made chronically worse by the service-connected residuals of sacroiliac injury. If aggravation is found, the examiner should offer an assessment of the extent of additional disability of the cervical spine resulting from aggravation by the low back disorder. In formulating the medical opinion, the examiner is asked to consider that the term "at least as likely as not" does not mean within the realm of possibility, rather that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 3. The veteran must be given adequate notice of the examination, to include advising him of the consequences of failure to report under 38 C.F.R. § 3.655 (2007). A copy of the examination notification should be associated with the claims folder. Failure to appear for examination should be noted in the file. 4. The RO should ensure that the medical report requested above complies with this remand, especially with respect to the instructions to provide a competent medical opinion. If the report is insufficient, or if the 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). 5. After taking any further development deemed appropriate, the RO should re-adjudicate the issue on appeal. If the benefit is not granted, the veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond before the record 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).