Citation Nr: 1301979 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 04-31 739A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from March 1981 to May 1984. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In October 2009, the Veteran testified in a video conference hearing in front of a Veterans Law Judge. The transcript of the hearing is associated with the claims file and has been reviewed. In an October 2012 letter, the Veteran was informed that the VLJ who presided over his hearing no longer worked at the Board. He was given the option of having a new hearing. In November 2012, the Veteran stated replied he did not want a new hearing. In June 2011, the Board denied entitlement to service connection for a neck disability, headaches and hydrocephalus. The Veteran appealed the denial of the issue of entitlement to service connection for a neck disability to the United States Court of Appeals for Veteran's Claims (Court). In August 2012, pursuant to a Joint Motion for Remand (JMR) dated that same month, the Court remanded the issue of entitlement to service connection for a neck disability and dismissed the issues of entitlement to service connection for headaches and hydrocephalus. 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 seeks service connection for a neck disability. He contends that a cervical spine disability is related to his service connected lumbar disability. Alternatively, he asserts that it is related to injuries to his head in service. Prior to the June 2011 decision, the Board remanded the claim for development in December 2009. In the remand, the Board requested that the RO provide the Veteran with a VA examination to determine the etiology of his neck pain. The examiner was to provide an opinion as to whether the Veteran's neck disability is causally or etiologically related to or aggravated by active service or to another service connected disability. The Veteran was afforded a VA examination in March 2010. At the time, the Veteran was diagnosed with degenerative disc disease of the cervical spine. The examiner opined that the Veteran's disability is as likely as not caused by or related to injury while in service. She reasoned that injury or trauma to the spine has been shown in medical literature to be an etiologic factor in the development of degenerative disease. In June 2011 the Board denied the claim finding that the March 2010 opinion was based on an inaccurate factual premise and is not probative. The Board noted that the Veteran contends that he sustained two separate head injuries in service. The service treatment records, however, do not support this contention. The Board further noted that, not only do the service treatment records not contain treatment for a head injury, but the Veteran also reported that he did not have a head injury in service when he separated from service in 1984. An August 2012 JMR argued that the terms of the December 2009 Board remand had not been complied with. It stated that a remand was necessary in accordance to Stegall v. West, 11 Vet. App. 268 (1998) as the Board erred by failing to ensure that the development undertaken in the case complied with the terms in the Board's December 2009 remand. Specifically, the JMR argued that the March 2010 VA examiner did not specifically address whether the Veteran's neck disability could be causally or etiologically related to or aggravated by active service or to another service connected disability. The JMR further stated that the examiner failed to provide a rationale for the opinion as required by the Board's remand. The JMR stated that a new VA examination should be conducted on remand. In August 2012, the Court, pursuant to the JMR, remanded the claim to the Board for action consistent with the terms of the joint motion. Accordingly, the Board will remand the claim for a new VA examination and opinion. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination with the appropriate medical specialist to determine the etiology of his degenerative disc disease of the cervical spine. The claim file must be made available to and reviewed by the examiner in conjunction with the examinations. The examiner should be afforded access to the Veteran's Virtual VA file. Any indicated diagnostic tests and studies should be accomplished. The examiner should state whether the Veteran's disability is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), causally or etiologically related to or aggravated by active service or to another service-connected disability, including his lumbar spine disorder. A complete rationale for any opinion rendered must be provided. 2. The RO should then readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. 2012). _________________________________________________ MICHAEL LANE 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).