Citation Nr: 1301339 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-40 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a cervical spine disability, to include secondary to service-connected degenerative disc disease of the lumbar spine and/or service-connected right acromioclavicular separation. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from November 1983 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision by the RO which denied, in part, the benefit sought on appeal. Historically, the issue currently on appeal was initially characterized as service connection for bilateral upper extremity radiculopathy, secondary to the service-connected low back disability or right shoulder separation. However, the issue has been restated to reflect the appropriate anatomical disability claimed by the Veteran. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he injured his neck in the motorcycle accident he had in service that caused his current low back and right shoulder disabilities and believes that his current cervical spine and upper extremity problems are either directly related to the accident or, in the alternative, secondary to the service-connected low back and right shoulder disabilities. Service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Claims of secondary service connection also include instances in which there is an additional increment of disability of a nonservice-connected disability due to aggravation by an established service-connected disability. The service treatment records (STRs) showed that the Veteran suffered a right shoulder separation after falling from his motorcycle in August 1984. The STRs were completely silent for any head or neck complaints or symptoms in service. The first reported complaint of neck pain was noted on a private treatment record, dated in October 1999, some 12 years after service. At that time, the Veteran reported a sudden onset of pain in the left side of his neck and left shoulder. The private report indicated that the Veteran's pain was muscular in nature. The impression on VA peripheral nerve examination in October 2000, included paresthesias of the right deltoid and dorsal forearm of unknown etiology, possible cervical radiculopathy, plexopathy, or myofascial spasm. A VA EMG/NCV test of the right upper extremity in November 2000 was normal. A private neurological report, dated in April 2002 showed no pertinent abnormalities of the neck or upper extremities. Similarly, the Veteran made no mention of any neck or upper extremity problems when examined by VA in October 2002, and no pertinent abnormalities were noted on examination. A private MRI in February 2007, revealed partial congenital vertebral body fusion at C6-7 and mild cervical spondylosis, most prominent at C4-5 with varying degrees of mid-cervical foraminal narrowing. Although the Veteran was examined by VA during the pendency of this appeal, the examiners offered opinions only on the question of direct service connection, and did not address the question of secondary service-connection, including whether the cervical spine disability was aggravated by the service-connected disabilities. Additionally, the Board notes that the diagnosis by the VA examiners (also reported on the private MRI in February 2007) included congenital fusion of the cervical spine. In general, a congenital disorder is one that was present since birth. Therefore, if the Veteran has a congenital spinal disorder that was present since birth or at least prior to service, there is the additional question of whether the pre-existing spinal disorder worsened or was otherwise aggravated by service. Where a medical examination does not contain sufficient detail to decide the claim on appeal, the Board must return the report as inadequate for evaluation purposes. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); see also, Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (noting that once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In this case, the Board finds that the VA examinations were inadequate, and that further development is necessary to address all of the medical questions concerning the Veteran's theories of entitlement. On remand, therefore, the Veteran's claim should be returned to the VA examiner who performed the March 2012 examination, if available, to provide an opinion regarding secondary service connection and the issue of aggravation. Finally, the Board notes that the Veteran underwent cervical spinal fusion at a private hospital in February 2011. See March 2012 VA examination report. However, none of those records have been associated with the claims file. As these records may be potentially relevant to the current claim, the Veteran should be requested to submit the records or provide VA with authorization to obtain any outstanding records. In light of the discussion above, and to ensure full compliance with due process requirements, it is the decision of the Board that further development is necessary prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Appropriate steps should be undertaken to obtain the names and addresses of all health care providers who treated the Veteran for any cervical spine or upper extremity problems since September 2010. Of particular interest are the private medical reports for his surgery in February 2011. After the Veteran has signed the appropriate releases, all outstanding, pertinent records should be obtained and associated with the claims folder. 2. After the above development is completed, return the claims file to the VA examiner who evaluated the Veteran in March 2012, or if unavailable, schedule the Veteran for another VA examination by a qualified physician. The examiner should note in the examination report that the claims file has been reviewed. All indicated tests and studies should be accomplished. The examiner should describe all findings in detail and provide a complete rationale for all opinions offered. Following a complete review of the claims folder and examination of the Veteran, the examiner should respond to the following: a) Did a congenital disability of the cervical spine clearly and unmistakably exist at the time of the Veteran's service enlistment examination? b) If so, based on a review of the record, is it at least as likely as not that any identified pre-existing cervical spine disability underwent an increase in severity in service (i.e., a permanent worsening of the underlying disease as distinguished from a temporary or intermittent flare-up)? c) If there was an increase during service, was such increase clearly and unmistakably due to the natural progress of the disease OR was the increase due to aggravation of the pre-existing disability? d) If the Veteran did not have a congenital cervical spine disability at the time of service enlistment, is it at least as likely as not that any current cervical spine disability was incurred in or is otherwise related to service? e) If not, is it at least as likely as not that any current cervical spine disability (and upper extremity problems) is proximately due to, the result of, or aggravated by the service-connected low back AND/OR right shoulder disabilities? A fully articulated medical rationale for the opinion expressed must be set forth in the examination report. The examiner should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If the examiner is unable to render an opinion without resorting to speculation, this should be noted and explained. In so doing, the examiner should identify any evidence required in order to render a non-speculative opinion, (which the AMC should attempt to obtain, and then return the claims file to the examiner for completion of the opinion). Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 3. Following completion of the foregoing, the AMC must review the claims file and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. See 38 C.F.R. § 4.2 (2012). 4. After the requested development has been completed, the AMC should readjudicate the claim. This should include consideration of whether the Veteran's cervical spine disability is proximately due to or the result of, or aggravated by the service-connected low back disability and/or service-connected right shoulder disability. If the benefits sought on appeal remain denied the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran 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. 2012). _________________________________________________ WAYNE M. BRAEUER 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).