Citation Nr: 1302986 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 06-35 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a chronic upper back disability, to include the thoracic and cervical spine. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and Mr. M. F. ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran served on multiple periods of active duty, with service from November 1986 to April 1987, October 1992 to February 1993, November 2001 to February 2002, and January 2004 to May 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for an upper back disability, to include the thoracic and cervical spine. The RO in Jackson, Mississippi is currently the agency of original jurisdiction. A hearing was held before a Decision Review Officer at the RO in July 2007. In September 2008, the Veteran appeared at a hearing held at the RO before the undersigned (i.e., Travel Board hearing). The claim was remanded in November 2008 and again in December 2009. In a decision dated in August 2011, the Board denied the appeal. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In a July 2012 Joint Motion for Remand (JMR) filed with the Court, the parties (the Veteran and the VA Secretary) requested that the Board decision be vacated and remanded; a July 2012 Court order granted the joint motion. 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 on his part. REMAND In the JMR, the parties agreed that the evidence relied on by the Board was insufficient to determine entitlement to service connection for an upper back disability as secondary to the service-connected lumbar degenerative disc disease with chronic low back pain. They agreed that the Veteran should be provided with a VA medical opinion addressing whether the service-connected low back disability caused or aggravated the upper back disability. In a subsequent statement dated in September 2012, the Veteran requested that the Board proceed with a decision on his claim, which he said was well-documented. However, the Board previously denied the claim based on that evidence, and the Veteran, through his attorney, agreed to remand the case for an opinion. Thus, the claim must be remanded to obtain an examination and opinion concerning whether his upper back disability was caused or aggravated by a service-connected condition, including degenerative disc disease of the lumbar spine. See 38 C.F.R. § 3.310(c) (2012); see also Allen v. Brown, 8 Vet. App. 374 (1995) (Secondary service connection may be established for a disorder which is aggravated by a service-connected disability.). Accordingly, the case is REMANDED for the following action: 1. Copies of updated treatment records should be obtained and added to the claims file. 2. Following completion of the above, obtain an examination and opinion addressing whether service connection for an upper back disability is warranted, on a secondary basis. Specifically, is it at least as likely as not (i.e., a 50 percent or greater probability) that an upper back disability, including of the thoracic and/or cervical spine is of service onset or otherwise related thereto or is proximately due to, or aggravated (permanently worsened) by, service-connected degenerative disc disease of the lumbar spine with chronic lower back pain, or other service-connected disability? The claims file must be provided to the examiner in conjunction with the examination/opinion, and the rationale for all opinions expressed must be provided. 3. After assuring compliance with the above development, and any other notice and development action required by law, readjudicate the claim for service connection for an upper back disability, including of the thoracic and/or cervical spine, on a direct/presumptive basis, in addition to as secondary (including by aggravation) to service-connected degenerative disc disease of the lumbar spine, or other service-connected disability. If the claim is denied, the Veteran and his representative should be provided with a supplemental statement of the case, and given an opportunity to respond, before the case 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. 2012). _________________________________________________ BARBARA B. COPELAND 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).