Citation Nr: 1305201 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 07-28 087A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for thoracolumbar spine disability. 2. Entitlement to an initial rating higher than 10 percent for degenerative arthritis of the cervical spine. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from September 1982 to September 1992. This appeal to the Board of Veterans' Appeals (Board) is from an October 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) that granted service connection for degenerative arthritis of the cervical spine and assigned a 10 percent initial rating for this disability retroactively effective from February 8, 2006, the date of receipt of this claim. The Veteran appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). This appeal also concerns a more recent October 2008 RO decision that denied service connection for additional disability said to be affecting the remaining, i.e., thoracic and lumbar (thoracolumbar) portion of the spine. In November 2012, as support for his claims, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. Since the claims require further development before being decided on appeal, the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Veteran was last examined for his cervical spine disability in April 2010, so nearly 3 years ago. He contended during his more recent November 2012 videoconference hearing before the Board that this disability continues to get progressively worse, so has changed significantly since that prior examination. In light of this contention that this service-connected disability continues to increase in severity, and based on the Board's preliminary review of the medical evidence of record, he needs to be reexamined to reassess the severity of this disability. When a claimant alleges that his service-connected disability has worsened since the last examination, a new examination is required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination). See also, VAOPGCPREC 11-95 (April 7, 1995); and Green v. Derwinski, 1 Vet. App. 121 (1991). Regarding the claim for thoracolumbar spine disability, the Veteran alleges this disability is directly related to injuries he sustained in a March 1992 automobile accident while in service or is secondary to his service-connected cervical spine disability, meaning caused or aggravated by this service-connected disability. There are conflicting medical opinions concerning this claim. In a July 2008 opinion, an examining VA physician's assistant found that the Veteran's disc protrusions of the thoracic and lumbar spine were less likely than not caused by or a result of his service-connected degenerative arthritis of the cervical spine, indicating he was not seen for low back pain on active duty and that he had stated that his low back symptoms had begun "2 to 3 years (prior to the July 2008 examination", so not until well after his military service had ended. Similarly, in an April 2010 opinion, an examining VA physician noted there were no complaints of back pain at the time of the March 1992 accident; that there were no subsequent complaints of back pain from the time of that motor vehicle accident until the Veteran's separation from military service; and that there were no records showing back-related complaints between 1992 and 1996. The examiner therefore found that without a history of definite service injury between the date of the accident and 1996, he could not diagnose a service-connected disabling problem. The examiner also noted that a thorough review of the medical literature showed that degenerative changes in one area of the spine did not spread to another area unless there was a generalized inflammatory disease, a spondyloarthopathy or other abnormality such as diffuse idiopathic skeletal hyperostosis (DISH). In contrast, in a January 2009 letter, a private treating physician indicated that the March 1992 emergency room treatment record shows the Veteran had back pain in between the scapula and thoracic spine after his automobile accident in 1992. This commenting physician noted that, in a request for X-rays, the emergency room doctor specifically noted the Veteran's complaint of "midline thoracic pain." The plain film then showed no acute fracture or subluxation but did mention "degeneration of T4-5." This physician commented that the thoracic spine was a very unlikely area of disherniation in a young patient the age of the Veteran. Wear and tear was not normally seen at T11 to T12 unless it resulted from trauma caused by injury. Additionally, in his past history, the only injury the Veteran had mentioned was the 1992 accident. Accordingly, it was this private physician's medical opinion that the Veteran's lumbar disc herniation and thoracic disc herniation in all likelihood were caused by prior injuries related to his duty as a soldier and were probably directly related to the injuries sustained in 1992. All three of these medical opinions contain some level of inaccuracy concerning the Veteran's medical history. Although the initial July 2008 VA examiner indicated that the Veteran's back symptoms had not begun until two to three years prior to July 2008 (per self-report), the Veteran has clarified that he experienced problems with lumbar and thoracic pain soon after service for which he underwent MRI testing in February 1997. Also, although the April 2010 VA examiner indicated there were no complaints of "back pain" at the time of the March 1992 accident, the emergency room record confirms the Veteran was complaining of "midline thoracic pain" at that time. Thus, while he may not have been experiencing pain in his lower back, he clearly was experiencing pain in the mid to upper back. Additionally, although the private physician stated that the March 1992 emergency room report had shown "degeneration of T4-5", the actual notation indicates the Veteran exhibited "degeneration of C4-5." C refers to the cervical vertebrae, whereas T refers to the thoracic vertebrae. Given these inaccuracies in these reports, and their conflicting conclusions, the Board finds that the April 2010 VA compensation examiner should provide an addendum opinion concerning the etiology of the Veteran's thoracolumbar spine disability. Along with opining on the likelihood the thoracolumbar spine disability is directly related to the Veteran's military service, and in particular the injuries sustained in the March 1992 motor vehicle accident, this examiner must also comment on the likelihood the service-connected cervical spine disability alternatively has caused or aggravated the thoracolumbar spine disability. Supplemental medical comment therefore is needed concerning both direct and secondary service connection. If the April 2010 VA examiner is unavailable to provide this further comment, then have someone else provide it that is qualified. Also, if there are additional (more recent) treatment records concerning these disabilities, they need to be obtained and considered. 38 C.F.R. § 3.159(c) (2012). Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Obtain all records (VA and/or private) of evaluation or treatment for cervical and thoracolumbar spine disability since April 2010. If the records identified are not in the custody of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if they are. So make as many attempts to obtain identified records as are necessary to comply with this VA regulation, depending on who has custody of them. Also obtain any necessary authorization from the Veteran and appropriately notify him if unable to obtain identified records. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, schedule a VA compensation examination to reassess the severity of his the cervical spine disability. The claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner for the pertinent history of this disability. All necessary diagnostic testing and evaluation should be performed. All impairments should be noted. In particular, the examiner must specify range of motion of the cervical spine in degrees of arc on forward flexion, backward extension, left and right lateral flexion (side bending), and left and right rotation (twisting), also comparing this motion to what VA considers normal range of motion in each of these directions. See 38 C.F.R. § 4.71a, Plate V (2012). If the Veteran demonstrates limitation of motion, the examiner should comment on the extent, if any, that pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran, results in functional loss, including any additional limitation of motion. The examiner therefore needs to specify at what point in the Veteran's range of motion pain sets in. The examiner should also comment on whether and to what extent there is incoordination, weakened movement, and premature or excess fatigability on use, including expressing an opinion concerning whether there would be additional limits on functional ability on repeated or prolonged use of the cervical spine or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, must provide an assessment of the level of functional impairment on repeated use or during flare-ups. Such discussion regarding additional limits on functional ability should specifically include a description of whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. If feasible, the examiner should try and quantify the amount of this additional impairment, such as by specifying the additional restriction in motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2012). As well, the examiner should indicate whether there is ankylosis of this segment of the Veteran's spine and, if there is, whether it is favorable or unfavorable. The examiner must additionally indicate whether there is degenerative disc disease (DDD) of the cervical spine, i.e., intervertebral disc syndrome (IVDS), and whether it is associated with the degenerative joint disease (DJD), i.e., arthritis, affecting this segment. If determined it is, then, if possible, the examiner should also indicate whether the Veteran has had incapacitating episodes during the last 12 months and, if so, the number of episodes and the duration of them. *An incapacitating episode is a period of acute signs and symptoms due to the IVDS that requires bed rest prescribed by a physician and treatment by a physician. 3. Return the claims file to the May 2010 VA compensation examiner for supplemental comment (i.e., an addendum opinion) regarding the likelihood (very likely, as likely as not, or unlikely) that: A) The Veteran's current thoracolumbar spine disability is directly related or attributable to his military service, including especially to the injuries he sustained in the March 1992 automobile accident while in service; OR B) secondarily related to his service, in particular caused by his service-connected cervical spine disability, OR C) aggravated, meaning chronically/permanently worsened by his service-connected cervical spine disability. *Medical opinion therefore is needed concerning direct and secondary service connection, so regarding causation and aggravation. The examiner must review all of the pertinent information in the claims file, including the service treatment records (including the March 1992 emergency room report), the post-service VA and private treatment records (particularly the February 1997 private MRI reports and a May 1997 neurosurgical follow-up note), the July 2008 VA medical opinion, the January 2009 private medical opinion, the April 2010 VA medical opinion, and the assertions of the Veteran and his wife (including the Veteran's July 2010 statement and the November 2012 hearing testimony of the Veteran and his wife). The examiner must discuss the underlying rationale for all of the opinions provided, if necessary citing to specific evidence in the file. If, for whatever reason, the April 2010 VA examiner is unavailable to provide these addendum opinions, then have another physician comment that is qualified to make these necessary determinations. In this eventuality, however, the Veteran may need to be reexamined, but this is left to the designee's discretion. 4. Ensure the supplemental opinion, whoever provides it, is responsive to the questions of whether the Veteran's thoracolumbar spine disability is directly related to his military service and whether the service-connected cervical spine disability caused OR is aggravating the thoracolumbar spine disability. Also ensure the VA cervical spine examination report is fully responsive to the remand instructions and addresses the applicable rating criteria. If not, take corrective action to avoid another remand. 38 C.F.R. § 4.2. See also Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with a remand directive, and the Board itself commits error as a matter of law in failing to ensure compliance). 5. Then readjudicate these claims for service connection for thoracolumbar spine disability, both on the premise this disability was directly incurred in service or is secondary to (caused or aggravated by) the service-connected cervical spine disability, and for an initial rating higher than 10 percent for the cervical spine disability (degenerative arthritis) in light of this and all other additional evidence. If either claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ Keith W. Allen 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).