Citation Nr: 1300951 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-07 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a thoracolumbar spine disorder. 3. Entitlement to service connection for a psychiatric disorder, secondary to a lumbar spine disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from June 1966 to July 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of January 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND During a May 2007 VA mental health examination, the Veteran reported that he had applied for Social Security Administration (SSA) disability benefits "some years ago." While the Veteran did not indicate that the SSA records would include evidence relevant to the claims on appeal that were not already associated with the claims file, the Board cannot assume that these records would not be new or relevant without obtaining them. Accordingly, an attempt must be made to obtain the SSA records. See 38 C.F.R. § 3.159(c)(2) (2012). Furthermore, addendum opinions should be obtained from a VA examiner and Dr. H. The Veteran was afforded a VA examination in May 2007. The examiner acknowledged that the Veteran was treated in service for a neck injury and complaints pertaining to the back but determined that the in-service incidents were "acute" and that due to the length of time between the acute incidents and the development of arthritis, it was "far more likely" the Veteran's extensive work history caused the development of spinal developmental disease. Although this opinion is probative, countervailing evidence was subsequently received, including opinions from the Veteran's spouse, a registered nurse, and Dr. H., a neurosurgeon. In a January 2008 statement, the Veteran's spouse reported that she had known the Veteran since approximately 1974 and that she remembered the Veteran complaining of neck and back pain "during all the years" they were together. She indicated that she believed the injuries in service resulted in trauma to the vertebral column which was the "catalyst for the degenerative changes." In a January 2008 statement, Dr. H. wrote that the Veteran's condition was "clearly and inarguably brought on by the presence of repetitive strain in the back." Dr. H. explained that the thickening of the ligamentum flavum, the thickening of the posterior longitudinal ligament, and the osteoarthritic changes within the facet joints caused a tight spinal canal, that is spinal stenosis. Dr. H. added that the activities bringing on the degenerative change include constant bending over, removing and reinstalling parachutes and survival seat kits during service and that the evidence of chronic injury was found in the February, March, and December 1967 service treatment records. Although these opinions are competent, their probative values are limited. The Veteran's spouse's opinion has limited probative value because a rationale was not provided for the opinion. Dr. H.'s opinion has limited probative value because he does not address the evidence of repetitive bending after service. For clarification purposes, Dr. H. and the VA examiner should have the opportunity to supplement the record with an addendum opinion. Because the claim of service connection for a psychiatric disorder is inextricably intertwined with the issue of service connection for a thoracolumbar spine disorder, it is held in abeyance pending completion of the development discussed below. See Hoyer v. Derwinski, 1 Vet. App. 208, 209-10 (1991). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issues on appeal. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must contact the SSA and obtain copies of all medical and other records considered by SSA as part of any claim for benefits submitted by the Veteran. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must contact Dr. H. to afford Dr. H. the opportunity to provide an addendum to clarify the January 2008 statement. Specifically, Dr. H. must be asked to provide additional rationale for his determination that the cervical and thoracolumbar spine disorders are related to the Veteran's military service, with consideration of the effect, if any, that the Veteran's post-service occupations, including working as a gardener and working with "concrete lawn ornaments, woodworking, and construction," required bending over. 3. Thereafter, the VA examiner that conducted the May 2007 VA examination must be contacted to provide a supplemental opinion as to whether the Veteran's current cervical and thoracolumbar spine disorders are related to his military service, with consideration of the opinions from Dr. H and the Veteran's spouse. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. A complete rationale for any opinion must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. If the examiner that conducted the May 2007 examination is not available or cannot provide the requested opinion, the Veteran must be afforded the appropriate VA examination to determine whether the cervical or thoracolumbar spine disorder is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and consideration of the Veteran's and other lay statements of record, the examiner must state whether any diagnosed spinal disorder is related to the Veteran's active duty service. A complete rationale for all opinions must be provided, with discussion of the in-service treatment for a neck injury and back strain and the complaints of recurrent back pain and arm weakness at separation. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After the requested examination has been completed, the RO must review the examination report or addendum to ensure that it is in complete compliance with the directives of this remand. An examination report or addendum must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once. 6. After completion of the above actions, and any additional development as a result thereof, the RO must then readjudicate the claims and, thereafter, if any claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2012).