Citation Nr: 1304045 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 03-16 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar spine disability. (The issues of entitlement to higher ratings for service-connected residuals of a left ankle fracture with traumatic arthritis are addressed in a separate decision.) REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to April 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In March 2008, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Board remanded this issue for further evidentiary development in September 2005, July 2007, and June 2009. The requested development was completed, and the case has now been returned to the Board for further appellate action. In June 2009, claims for entitlement to higher ratings for service-connected left ankle disability and service connection for posttraumatic stress disorder (PTSD) were also remanded. The higher rating claims are addressed in a separate Board decision. The claim for service connection for PTSD was granted in September 2011 and is therefore no longer before the Board. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2012) In June 2009, the Board instructed that the Veteran should be afforded a VA examination and an opinion should be obtained regarding whether the Veteran has a current cervical spine disability that is caused or aggravated by service or service-connected lumbar spine disability. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A VA joints examination was performed in June 2011. The examiner diagnosed cervical spine musculoskeletal strain and opined that this disability was not related to any incident during service or caused or aggravated by the service-connected lumbar spine disability. Part of the examiner's rationale was that sternocleidomastoid strain and a lumbar spine disability do not really influence each other. Cervical spine X-rays taken the same day as the examination reportedly revealed mild degenerative joint disease at the apophyseal facet joints of the mid and lower cervical spine. These X-rays were not addressed by the examiner. While the examiner opined that cervical strain and lumbar spine disability do not influence each other, she did not address whether the degenerative joint disease - which clearly differs from a muscular strain - was caused or aggravated by the service-connected lumbar spine disability. As such, the claims file should be returned to the examiner for an addendum report. Specific instructions are detailed below. For background purposes, the Board notes that a November 2002 VA treatment record indicates that the Veteran was involved in a motor vehicle accident that month where he was rear ended at a low rate of speed. He complained of neck pain and some right arm pain and was assessed with cervical strain. A cervical spine X-ray reportedly showed disc spaces relatively preserved, osteophytes anteriorly at C4-5 and C5-6, and no evidence of bony foraminal stenosis. Accordingly, the case is REMANDED for the following action: 1. Return the claims filed to the examiner who conducted the June 2011 joints examination, if available, to provide an opinion on the following after review of the entire claims file (both the paper file and any electronic portion of the file): (a.) Is it at least as likely as not (50 percent or greater) that the Veteran's cervical spine degenerative joint disease (shown on X-ray in June 2011) is causally related to his service-connected lumbar spine disability? (b.) Is it at least as likely as not (50 percent or greater) that the Veteran's cervical spine degenerative joint disease (shown on X-ray in June 2011) was aggravated beyond the normal course of the condition by his service-connected lumbar spine disability? (c.) What is the significance, if any, of the motor vehicle accident in November 2002? For example, could this have caused the current cervical spine disabilities? Are the X-rays from November 2002 suggestive of a cervical disability preexisting the motor vehicle accident? A complete rationale for all opinions expressed should be provided. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion, then such examination should be scheduled. If the previous examiner is no longer available, then the requested opinion should be rendered by another qualified examiner. 2. Then, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ LAURA H. ESKENAZI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).