Citation Nr: 1304571 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 08-22 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a cervical spine disorder, to include arthritis thereof. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1955 to January 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed the above issue. The Veteran testified at a Board hearing before the undersigned in June 2010; a transcript of that hearing is associated with the claims file. This case was initially before the Board in August 2010, February 2011 and lastly in May 2012, when the Board remanded it for further development. That development having been completed, the case has been again returned to the Board for further appellate review. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND In the May 2012 remand, the Board asked for the previous VA examiner to render an addendum opinion regarding service connection, whether the Veteran's neck injury existed prior to service, and whether such was aggravated by his service-connected left shoulder disability. The examiner opined, again, regarding service connection in the July 2012 addendum, but neglected to address the other two portions of the requested opinion. Thus, the Board finds that yet another remand is necessary in order to obtain an adequate opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). On remand, the Board requests that a new examination be afforded the Veteran with an examiner other than the previous examiner; the Board notes that the previous examiner has not rendered an adequate opinion in any of his prior three opinions with respect to this case. Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain any relevant VA treatment records from the East Orange VA Medical Center, or any other VA medical facility that may have treated the Veteran, since February 2012 and associate those documents with the claims file. 2. Schedule the Veteran for a VA examination with an appropriate physician other than the previous examiner in order to determine the nature and etiology of any cervical spine disorder. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, including x-rays, and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should state all of the cervical spine disorders found, including arthritic condition thereof. First, the examiner should address whether the Veteran's cervical spine arthritis more likely, less likely or at least as likely as not (50 percent or greater probability) is related to the Veteran's right shoulder fracture sustained prior to service. If so, then the examiner should address whether the Veteran's service at least as likely as not aggravated (e.g. made permanently worse beyond the normal progression of that disease) by the Veteran's service, to include any motor vehicle accident therein. Then, the examiner should indicate whether any cervical spine disorder more likely, less likely or at least as likely as not (50 percent or greater probability) began in or is related to military service, to include any motor vehicle accident therein. The examiner should also address the Veteran's lay statements regarding continuous symptomatology since discharge from service, as well as the previous VA examinations from September 2010 and March 2011, as well as the July 2012 addendum. The examiner should also opine whether the Veteran's cervical spine disorder is more likely, less likely or at least as likely as not caused by his service-connected left shoulder disability. The examiner should then opine whether the Veteran's cervical spine disorder is more likely, less likely or at least as likely as not aggravated by his service-connected left shoulder disability. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Following the above development, the originating agency should review the claims file and readjudicate the Veteran's claim of service connection for a cervical spine, to include any arthritis thereof. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant 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 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). _________________________________________________ Thomas H. O'Shay Acting 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).