Citation Nr: 1305462 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 03-28 934A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected right shoulder disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in October 2004. The Veteran also testified before a Veterans Law Judge at a December 2006 video conference hearing conducted at the RO. The Veterans Law Judge who conducted the hearing is no longer employed by the Board. The Veteran was apprised of that fact by a letter dated in July 2012, and was afforded the opportunity to have a new Board hearing. 38 C.F.R. § 20.707 (2012). The Veteran did not respond to the letter and as such no new hearing will be provided in this matter. 38 C.F.R. § 20.707 (2012). In May 2007, the Board denied the claim of entitlement to service connection for a cervical spine disability. Thereafter, the appellant filed an appeal to the United States Court of Appeals for Veterans Claims (Court). By Court order in August 2008, a July 2008 Joint Motion for Partial Remand was granted, and the Veteran's claim was remanded to the Board for additional development. In April 2009, February 2011, and December 2011, the Board remanded the Veteran's claim for further evidentiary development consistent with the July 2008 Joint Motion for Partial Remand The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND A review of the claims file reveals that a remand is unfortunately once again necessary before a decision on the merits of the claim can be reached. The Veteran contends that he sustained a right shoulder injury in service and has had cervical spine pain since that time. He indicated that his cervical spine complaints in service were essentially ignored and treated as part of the shoulder injury. Associated with the claims file are records from the Social Security Administration (SSA). The records include reference to a worker's compensation claim which the Veteran apparently filed in March 2002. Although some of the Veteran's worker's compensation records are associated with the claims file, it does not appear that complete records were requested from the appropriate agency. Consequently, after the necessary authorization is received from the Veteran, a request for the worker's compensation records should be made to the appropriate agency. Additionally, the Veteran submitted an authorization to release treatment records from General Electric (GE) Corporation dated in August 2011. In a letter dated in December 2011, the AMC advised the Veteran that the authorization he submitted was not valid due to changes in privacy requirements. The Veteran was requested to submit a new authorization. The Veteran did not respond to the AMC's request. However, as the Veteran's case requires a remand for additional development, the AMC should again request that the Veteran submit the necessary authorization for the release of the records from GE and thereafter request these records. The Veteran's service treatment reports reflect that the Veteran was treated for complaints of right shoulder pain during service. He was noted to have injured his shoulder carrying a large weight. He was variously diagnosed with chronic irritation of the right shoulder, old partial muscle tears, muscle sprain, muscle strain, pulled muscle, tendonitis, and bursitis. The records do not specifically reference cervical spine complaints. An August 1979 private medical record indicates that he has pain on the right side of the neck and that his neck would feel stiff. A January 1983 medical record of Dr. Guzik indicates that the Veteran was under his care from May 1982 for diagnosed subluxation of C1,C2, C5, pelvis, and sacrum with slight malformation of C2. An undated x-ray status report indicates that there is a slight abnormality in anterior part of axis vertebra which is a congenital defect and may be partly responsible for slow response and possibly the reason why the Veteran's lifting activity has aggravated his problem. See Volume 3. A May 1992 consultation from the Veteran's treating chiropractor, K. Guzik, D.C. indicates that the Veteran was involved in a rear end collision and immediately following the accident he had neck and back pain. The next day he had a sore back, neck, right leg, and elbow. A January 2002 VA MRI report indicates that the Veteran had mild congenital central canal stenosis. Mild end plate changes were seen with slight disc protrusion at the C6/C7 level. At C2/3 and C3/4 levels, no disc was seen. At the C4/C5 level, there was moderate uncovertebral joint hypertrophy seen with mild neural foraminal narrowing on the right side. See Volume 3. In September 2002, a VA examiner diagnosed the Veteran with cervical spine degenerative arthritis and opined that it was at least as likely as not that the degenerative changes found in the Veteran's spine were not related to the problem he has with his right shoulder. The examiner provided no rationale to support this opinion. In a January 2005 statement, the Veteran's treating chiropractor, Dr. Guzik opined that the Veteran's shoulder and cervical spine condition occurred during the same or approximately the same time period. He indicated that the cervical spine is intimately involved neurologically with all shoulder function and maintenance of tissue and position of the arm into the glenoid fossa. He concluded that there is a direct connection between the shoulder and the cervical spine issues. A January 2009 private MRI report indicated that the Veteran had central and slightly right paracentral disc protrusion at C5-6 significantly impinging upon the ventral aspect of the chord and narrowing the AP dimension of the canal to between 7 and 8 mm to the right of midline, disc bulging at C6-7 touching the ventral cord without cord deformity, moderate left foraminal narrowing at C6-7 due to uncovertebral osteophytes and facet arthropathy, cervical spinal canal appears borderline narrow on a congenital basis from C3 through C6. In June 2009, a VA examiner diagnosed the Veteran with a history of cervical strain with mild spondylosis. The examiner opined that the Veteran's cervical pain is not related to the Veteran's injury to the right shoulder while in service. The examiner indicated that cervical pain was noted in records subsequent to the Veteran's discharge from service and the service treatment reports indicate that the pain did not exist concomitantly with the Veteran's complaints of right shoulder pain and treatment. In March 2011, an addendum opinion was obtained from the June 2009 VA examiner. The examiner indicated that the Veteran's service treatment reports do not note findings of cervical pain at any time of the initial shoulder injury in service or at the multiple other times the Veteran was treated for shoulder pain in service. The examiner stated that the Veteran's service treatment reports do not substantiate Dr. Guzik's opinion that the right shoulder injury and cervical spine injury were concomitant. He opined that the service-connected shoulder injury did not cause or aggravate the injury to the cervical spine. He concluded that the cervical complaints are secondary to natural causes over a period of years. The examiner did not provide any rationale for his conclusion that the service-connected right shoulder injury did not cause or aggravate the Veteran's cervical spine disability. In February 2012, a VA examiner diagnosed the Veteran with degenerative disc disease of the cervical spine and mild foraminal narrowing bilaterally. The examiner opined that the Veteran's cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury to the Veteran's right shoulder. The examiner's rationale was that the described mechanism of injury is unlikely to account for the subsequent cervical spine pathology. He indicated that no examiner diagnosed the Veteran with a cervical spine condition at any of the multiple examinations in service and the Veteran sustained neck injuries subsequent to his time in service. The examiner also opined that the Veteran's cervical spine disability is less likely than not proximately due to or the result of the Veteran's service-connected condition because there is not a likely etiologic connection between changes in the shoulder from the shoulder pathology and the diagnoses of cervical spine conditions. He concluded that it is more likely than not that the spine conditions would have developed even in the absence of the shoulder condition. The examiner did not provide any opinion with regard to whether the Veteran's cervical spine disability is aggravated by the service-connected right shoulder disability. On several occasions, the medical evidence indicates the Veteran has a congenital defect in the form of a slight abnormality in the anterior part of the axis vertebra, mild congenital central canal stenosis, and a borderline narrow cervical spinal canal on a congenital basis from C3-C6. The Board is aware that, in the absence of a superimposed disease or injury, congenital or developmental defects, refractive errors of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Moreover, with respect to a disease, a Veteran is presumed in sound condition except for defects, infirmities, or disorders noted when examined and accepted for service. Clear and unmistakable evidence that the disorder existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3- 2003. The presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. See VAOGCPREC 3-2003. The VA General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Additionally, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310(b) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). In light of the fact that it remains unclear whether the Veteran's cervical spine disability is aggravated by the service-connected right shoulder disability and because it is unclear whether the Veteran's claimed cervical spine disability is a congenital defect (or disease) as was noted by several of the MRI reports of record, a supplemental opinion should be obtained from the February 2012 VA examiner. Associated with the claims file are VA outpatient treatment reports dated through March 2011. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claim, an attempt to obtain any VA records dated after March 2011 should be made. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide medical authorizations for the release of information pertaining to the worker's compensation records, the medical records from GE, and any other relevant records that are not already of record. If the Veteran provides the necessary authorizations, a request for the worker's compensation records, the records from GE, and any other identified records should be made. If, after making reasonable efforts to obtain the named records, the AMC is unable to obtain the same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Obtain any relevant VA medical records dating from March 2011. 3. Thereafter forward the entire claims file to the examiner who prepared the February 2012 VA spine examination for a supplemental opinion (or if unavailable, another qualified examiner). a. The examiner is asked to express an opinion as to whether the Veteran currently has a congenital defect of the cervical spine. In this regard, the examiner's attention is directed to the undated x-ray status report in volume 3 which indicates there is a slight abnormality in the anterior part of the axis vertebra which is a congenital defect, the January 2002 VA MRI report indicating the Veteran has a mild congenital central canal stenosis, and the January 2009 private MRI report indicating the cervical spinal canal appears borderline narrow on a congenital basis from C3-C6. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862 (D.C. Circuit 1954)]. Please provide a complete explanation for your opinion. b. If the examiner determines that the Veteran currently has a congenital defect, the examiner is asked to indicate whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed disease or injury in service that resulted in additional disability, including but not limited to the Veteran's subjective reports of cervical spine pain in service. Please provide a complete explanation for your opinion. c. If the examiner determines that the cervical spine disability is not a congenital/developmental defect but rather is a congenital disease, then state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the cervical spine disease pre-existed active service. Please provide a complete explanation for your opinion. d. If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that a pre-existing cervical spine disability WAS NOT aggravated (i.e., permanently worsened) during the Veteran's service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. Please provide a complete explanation for your opinion. e. If either of the two responses immediately above are negative, or the examiner finds that the Veteran also has an acquired cervical spine disorder, provide an opinion as to whether the current cervical spine disability at least as likely as not (a probability of 50 percent or greater) began in or is related to active service. Please provide a complete explanation for your opinion. f. Additionally, the examiner should provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that a cervical spine disability was caused by his service-connected right shoulder disability. Please provide a complete explanation for your opinion. g. Finally, is it at least as likely as not (a probability of 50 percent or greater) that a cervical spine disability was aggravated (i.e., increased in severity beyond the natural course of the condition) by his service-connected right shoulder disability. Please provide a complete explanation for your opinion. If the examiner is unable to provide the requested opinion without examining the Veteran, arrangements should be made for the Veteran to undergo a VA examination by an appropriate examiner to provide a medical opinion responsive to the questions posed above. The entire claims file must be made available to the examiner designated to examine the Veteran. 4. To help avoid future remand, ensure that all requested actions have been accomplished in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After taking any additional development action deemed warranted, reajudicate the claim. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case 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). _________________________________________________ S. S. TOTH 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).