Citation Nr: 1301633 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 07-26 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for cervical spine myelopathy with disc herniation, status-post discectomy with fusion, C4-5 and C 5-6. 2. Entitlement to service connection for right upper extremity and right lower extremity weakness, to include as secondary to cervical spine myelopathy with disc herniation, status-post discectomy with fusion, C4-5 and C 5-6. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty service from March 1975 to May 1985, and inactive duty for training (INACDUTRA) service in the Army National Guard from April 1997 to December 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This case was before the Board in August 2011 when it was remanded for additional development. Review of the claims file shows that the Veteran requested the opportunity to testify at a personal hearing before the Board; however, review of the claims folder reveals that he subsequently decided to cancel his hearing in August 2011. As such, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(d), 20.704(d) (2012). In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claims. Both the Board and originating agency (see August 2012 Supplemental Statement of the Case) have reviewed the VVA file, which includes VA treatment records 2011 to 2012. The other documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veteran contends that his cervical spine disability is the result of an injury incurred during INACDUTRA service. Specifically, he maintains that in April 2003, during a weekend drill with the Army National Guard, he sustained a misalignment of the cervical spine, which in turn, resulted in right upper extension and right lower extension weakness. Review of the claims file shows that, while on INACDUTRA in January 2005, the Veteran underwent surgery for a cervical spine discectomy with fusion. Despite his current contention of having sustained a traumatic injury to his cervical spine during INACDUTRA, neither his service treatment records, nor his VA treatment records indicate that he was involved in an accident or sustained a neck injury. Rather, these records appear to indicate that he began complaining of right-sided weakness since at least mid-2003, which progressed to the point that it became debilitating. See cervical spine surgery report, January 2005. In its August 2011 remand, the Board instructed the originating agency (in pertinent part) to arrange for the Veteran to be examined by a clinician with the appropriate expertise to determine the etiology of the Veteran's cervical spine disability, after obtaining up-to-date, pertinent treatment records. The examiner was to state, in pertinent part, whether it is at least as likely as not that any currently-diagnosed cervical spine disability is consistent with a traumatic injury, which the Veteran describes as having occurred in April 2003, or rather is the result of arthritis or another degenerative condition consistent with the normal aging process. The file contains a November 2011 VA opinion that is it less likely than not that the Veteran's neck complaints are related to his military service, essentially because service treatment records showed no evidence of injury to the cervical spine. The author of the opinion referred to a September 13, 2011 VA examination report; however, this record has not been associated with the paper claims file or the VVA file. (In this regard, the Veteran's representative has requested that the record be obtained. See November 2012 Statement from Representative.) VA records are considered part of the record on appeal since they are within VA's constructive possession, and such records may have bearing on the Veteran's claim. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, on remand, the RO or the AMC should obtain the September 13, 2011 VA examination report and all other outstanding VA treatment records pertinent to the claim. Moreover, the November 2011 VA opinion does not answer the question requested in the August 2011 BVA remand (as noted above). In Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand was necessary because a veteran's medical examination was inadequate, and because of the RO's failure to follow the Board's directives in a prior remand. The Court further held that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders. Id. Here, the Veteran's representative also maintains that the VA examination is inadequate and has requested a new examination. See November 2012 Statement from Representative. The Board regrets any additional delay in deciding this issue; however, for the reasons explained above, the case must be returned for a new examination. Finally, the claim of service connection for upper extremity weakness (to include on a secondary basis) is inextricably intertwined with the cervical spine claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Therefore, the Board will defer its decision on this claim until the Veteran's cervical spine claim is resolved. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should obtain a copy of any pertinent treatment records identified but not provided by the Veteran. In any event, it should obtain the September 13, 2011 VA cervical spine examination report. If the RO or the AMC is unable to obtain any pertinent evidence identified by the Veteran, it should request him and his representative to submit the outstanding evidence. 2. After all available records have been obtained, the RO or the AMC should afford the Veteran a VA examination by an appropriate physician to determine the etiology of any cervical spine disability present during the pendency of the claim. The Veteran should be properly notified of the examination and of the consequences of his failure to appear. All studies deemed appropriate should be performed, and all the findings should be set forth in detail. The claims file (including the VVA file) must be made available to and reviewed by the examiner. The examiner should elicit a complete history of the Veteran's neck injuries and symptomatology, and note that, in addition to the medical evidence of record, the Veteran's personal statements have been considered in his or her opinion. After review of the claims file and examination, the examiner should offer the following opinions: a. Is it at least as likely as not (i.e., is there at least a 50 percent probability) that any cervical spine disability present during the period of this claim is consistent with a traumatic injury, which the Veteran describes as having occurred in April 2003, or rather is the result of arthritis or another degenerative condition consistent with the normal aging process. Any and all opinions must be accompanied by a complete rationale. b. If the examiner determines it is at least as likely as not that the cervical spine disability resulted from a traumatic injury during INACDUTRA, he or she is asked to opinion whether it is also at least as likely as not that any currently-diagnosed right upper extension and right lower extension weakness were either caused or aggravated (as opposed to a temporary worsening) by the Veteran's cervical spine disorder. The examiner must explain the rationale for all opinions expressed. All findings and conclusions should be set forth in a legible report. 3. If, for any reason, the examiner is unable to offer an opinion without resorting to speculation, it should be so stated. In that case, the examiner must specifically support that conclusion with a detailed medical explanation that takes into consideration all of the pertinent evidence of record (including the Veteran's self-reported history, and addresses such matters as whether: a) there is inadequate factual information upon which to base an opinion (e.g., the lack of service treatment records); b) the question falls outside of the limits of current medical knowledge or scientific development; c) the condition manifested in an unusual way, such that its cause or origin is unknowable; or d) there are other risk factors for developing the condition. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should adjudicate the issues remaining on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 or by the Court 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). _________________________________________________ MARK W. GREENSTREET 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).