Citation Nr: 1310688 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 05-12 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a neck disability. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Appellant served in the North Carolina Army National Guard from April 1986 to July 2003, with periods of active duty for training (ACDUTRA) to include from September 17, 1986, to December 17, 1986, from September 7, 1988 to September 28, 1988, from May 16, 1998 to May 30, 1998, and from May 12, 2001 to May 26, 2001. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in September 2004 and in April 2005 of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2005, the Veteran appeared at a hearing before a Decision Review Officer. In October 2007, the Veteran appeared at a hearing before one of the undersigned Veterans Law Judges. The Board hearing was held on the claims of service connection for a back disability, a neck disability, a right shoulder, hearing loss, and hypertension, but not on the claim of service connection for posttraumatic stress disorder (PTSD) or a psychiatric disorder other than PTSD. Transcripts of the hearings are in the Veteran's claims file. In a decision in February 2008, the Board reopened the claims service connection for a back disability, a neck disability, and for a right shoulder disability, and remanded the claims for further development. The Board also remanded the claims of service connection for hearing loss, hypertension, and posttraumatic stress disorder or a psychiatric disorder other than PTSD. While on appeal in a rating decision in July 2008, the RO granted service connection for left ear hearing loss. In May 2009, the Veteran appeared at a hearing before one of the other undersigned Veterans Law Judges. The Board hearing was held on the reopened claims of service connection for a back disability, a neck disability, a right shoulder, and the claims of service connection for right ear hearing loss, hypertension, and posttraumatic stress disorder (PTSD) or a psychiatric disorder other than PTSD. A transcript of the hearing is in the Veteran's claims file. When two hearings have been held by different Veterans Law Judges covering the same claims, the law requires that the Board form a panel of not fewer than three Veterans Law Judges to decide the claims. 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3. Therefore a panel of three Veterans Law Judges has been formed to decide the claims that were heard in common by two of the Veterans Law Judges. In a decision in September 2009, a panel of three Veterans Law Judges denied service connection for right ear hearing loss, and remanded the claims of service connection for a back disability, a neck disability, a right shoulder disability, hypertension, and for posttraumatic stress disorder or a psychiatric disorder other than PTSD. In September 2011, the Veteran was afforded the opportunity to have a hearing before a third Veterans Law Judge of the panel, but he waived the right for the additional hearing. Arneson v. Shinseki, 24 Vet. App. 379 (2011). In December 2011, in a separate decision by a panel of three Veterans Law Judges, the Board remanded the claims of service connection for back disability, a neck disability, a right shoulder disability, and hypertension. In December 2011, in a separate decision, the Board remanded the claim of service connection for posttraumatic stress disorder or a psychiatric disorder other than PTSD. The remand was signed by the Veterans Law Judge who was the only one to hear testimony on the claim. The Board is proceeding with the appeal with separate decisions by a panel and by single judge as previously explained. Because a decision on the claims of service connection to be decided by the panel of Veterans Law Judges could have a significant impact on the claim of service connection for posttraumatic stress disorder or a psychiatric disorder other than PTSD to be decided by single Veterans Law Judge, the claim of service connection for posttraumatic stress disorder or a psychiatric disorder other than PTSD is deferred until the other claims of service connection are finally adjudicated. The claims to be decided by a panel of Veterans Law Judges are REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND In December 2011, the Board remanded the claims of service connection for back disability, a neck disability, a right shoulder disability, and hypertension, because the VA examinations of record were inadequate to decide the claims. The Board directed that the VA examiners, who conducted the previous examinations, provide addendum opinions with rationale that accounts for the significant facts of the case. As the requested development has not been completed, the Board is compelled to remand the claims for compliance. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand is not satisfied, the Board itself errs in failing to ensure compliance). Accordingly, the claims are REMANDED for the following action. 1. Arrange to the have the Appellant's file reviewed by the VA examiner who examined the Appellant in July 2010 for an addendum opinion with rationale that takes into account the significant facts in the record, as to whether it is at least as likely as not that the current back, neck, and right shoulder disabilities were aggravated during a period of active duty for training (ACDUTRA) in May 1998 or in May 2001. The VA examiner is asked to consider that the evidence shows: Non-military related injuries prior to the period of ACDUTRA in May 1998; Back, neck and arm pain during ACDUTRA in May 1998; and, Lower back and right shoulder pain after lifting a duffel bag during ACDUTRA in May 2001. The VA examiner is asked to comment on the clinical significance of the following: A work capacity assessment by HealthSouth, dated in June 1998, referring to a nonservice-related, on-the-job neck injury August 1996; A private physician's comments in July 2000 that the Appellant's medical condition was stable, although there were intermittent exacerbations of symptoms and the Appellant was on permanent work restrictions; A physician's statement at Womack Army Medical Center in July 2001 that the Appellant was disabled from June 2001 and was not fit for normal military duty; A statement of the Adjutant General of North Carolina in October 2002 that the lumbar and cervical spine disabilities were not related to service and were not aggravated therein, as determined by the National Guard Bureau's Surgeon; A report of VA examination in September 2004 with a clarifying report in February 2005 in which the VA examiner found it less likely than not that the degenerative changes of the low back and right shoulder that were seen on X-ray were related to the service injuries noted in May 1998 and in May 2001; and, A VA physical therapy record, dated in November 2008, noting that the neck and right shoulder pain were possibly related to a fall while on active duty. In formulating an opinion, the term "aggravation" means a permanent increase in severity, that is, a worsening of the underlying condition not due to the natural progress as contrasted to a worsening of symptoms. If, however, after a review of the record, an opinion on aggravation is not possible without resort to speculation, the VA examiner is asked to clarify whether aggravation cannot be determined because there are several potential factors, when the events during ACDUTRA are not more likely than any other to aggravate the Veteran's current disabilities and that an opinion on aggravation is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. If the VA examiner, who conducted the VA examination in July 2010, is not available, arrange for another orthopedist to render the requested opinion. 2. Arrange to the have the Appellant's file reviewed by the VA examiner who examined the Appellant in May 2008 for an addendum opinion with rationale that takes into account the significant facts in the record as to whether it is at least as likely as not that the current hypertension had onset or was aggravated during a period of active duty for training (ACDUTRA) in May 1998 or May 2001. The VA examiner is asked to consider that the evidence shows: Blood pressure readings of 146/92, 160/90, and 138/87 during ACDUTRA in May 1998; and, blood pressure readings of 162/98, 145/93, 138/89, and 164/102 during ACDUTRA in May 2001. The VA examiner is asked to comment on the clinical significance of the following: On cardiac testing in December 1998, June 1999, and August 2000, the blood pressure readings were elevated; In September 2001, a diagnosis of hypertension was confirmed and in June 2002 on a military physical examination the blood pressure readings were 163/90 and 150/80; and private and VA records from 2004 document consistently high blood pressure readings and treatment for hypertension. In formulating an opinion, the term "aggravation" means a permanent increase in severity, that is, a worsening of the underlying condition not due to the natural progress as contrasted to a worsening of symptoms. If, however, after a review of the record, an opinion on causation or aggravation is not possible without resort to speculation, the VA examiner is asked to clarify whether causation or aggravation cannot be determined because there are several potential factors, when the events during ACDUTRA are not more likely than any other to cause or aggravate hypertension and that an opinion on causation or aggravation is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. If the VA examiner, who conducted the VA examination in May 2008, is not available, arrange for another VA examiner to render the requested opinion. 3. After completing the development requested, adjudicate the claims of service connection for a back disability, a neck disability, a right shoulder disability, and for hypertension. If any benefit sought remains denied, furnish the Appellant and his representative a supplemental statement of the case and return the case to the Board. The Appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). 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). ______________________________ _____________________________ C. Trueba Ronald W. Scholz Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals _________________________________________________ George E. Guido Jr. 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).