Citation Nr: 1312048 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 08-14 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected low back syndrome with thoracic spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from February 1976 to January 1979 and in the Army National Guard of Alabama from March 1979 to October 1985, without evidence of any periods of active duty therein. This matter comes to the Board of Veterans' Appeals (Board/BVA) on appeal from an August 2006 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the Veteran's claim of entitlement to a rating higher than 40 percent for service-connected lumbar spine disability, as well as his claim of entitlement to service connection for a hernia. The August 2006 rating decision also denied the Veteran's applications to reopen claims of entitlement to service connection for spondylititis, C-5 vertebrae, and prostatitis on the basis that new and material evidence sufficient to reopen the previously denied claims had not been received. In a March 2012 decision, the Board denied the increased rating claims, reopened the Veteran's claims of entitlement to service connection for spondylititis, C-5 vertebrae, and prostatitis, and denied service connection for a prostate disorder and a hernia. The Board remanded the reopened claim of entitlement to spondylititis, C-5 vertebrae, for additional development and such issue now returns for further appellate review. The Board observes that the November 2012 supplemental statements of the case, as well as the Veteran's representative's March 2013 Appellant's Post-Remand Brief, inadvertently addressed the issue of entitlement to service connection for prostatitis. In this regard, as the Board reopened and denied such claim on the merits in the March 2012 decision, such issue is no longer in appellate status. If the Veteran would like to submit an application to reopen such claim, he should so inform the RO. In February 2011, the Veteran testified in a personal hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing has been associated with the claims file. A review of the Virtual VA paperless claims processing system contains VA treatment records dated through October 2012 that were reviewed by the agency of original jurisdiction (AOJ) in the November 2012 supplemental statement of the case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Since all action ordered in the Board's March 2012 Remand was not completed, this matter must, once again, be remanded for such action. See Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). In this regard, the March 2012 remand directed that the Veteran be provided proper Veterans Claims Assistance Act of 2000 notice with respect to the secondary aspect of his claim; that he be offered an opportunity to identify any outstanding treatment records and, thereafter, all identified records, to include updated VA treatment records, be obtained; and that he be afforded a VA examination so as to determine the nature and etiology of his cervical spine disorder. While the first two directives were accomplished and the Veteran was afforded a VA examination in March 2012, the Board finds that the timing of the examination as well as the opinion rendered at such time did not comply with the Board's remand directives. Specifically, the March 2012 remand orders directed that the Veteran be afforded a VA examination after all outstanding treatment records had been obtained; however, he was afforded a VA examination in March 2012, prior to the receipt of additional records. Moreover, the Board directed that the examiner should offer an opinion as to whether it is at least as likely as not that any diagnosed cervical spine disorder is etiologically related to the Veteran's military service, to include his in-service complaints of pain in the right upper back, clavicle, mid-thoracic back, or neck; whether the Veteran had arthritis of the cervical spine within one year of his service separation in January 1979 and, if so, to describe the manifestations; and whether the Veteran's cervical spine disorder is caused or aggravated by his service-connected lumbar spine disorder. The Board further directed that a rationale for any opinion offered should be provided. On VA examination in March 2012 the Veteran's claim file was reviewed. It was noted that the Veteran reported having mild problems from a cervical spine condition during service. The examiner noted that the current diagnoses were cervical disc disease and spondylosis of C5. The Veteran reported that the problems had gotten worse in the mid 1990s, and worsened again in the early 2000s with intermittent radicular symptoms which had increased in severity, culminating in cervical fusion surgery in 2009. The examiner's review of the service treatment records revealed evaluation and treatment for mid-thoracic and low back pain, but no entries for neck pain. The examiner reported that the Veteran's cervical spine condition was less likely than not incurred in or caused by a claimed in-service injury, event or illness. The rationale was that the examiner was unable to identify any neck problems in the Veteran's service treatment records and no cervical spine disorder was diagnosed at service discharge. She further indicated that mid-thoracic pain and the service-connected lumbar spine disorder do not cause or aggravate disorders of the cervical spine. The examiner also opined that the Veteran's cervical spine condition was less likely as not proximately due to or the result of the Veteran's service-connected low back condition. She again based his rationale on the fact that cervical spondylosis and cervical disc disease were not caused by mid-thoracic and low back pain or problems. However, while the examiner noted that mid-thoracic pain and the service-connected lumbar spine disorder do not cause or aggravate disorders of the cervical spine, she did not offer a rationale for such opinion. Furthermore, she failed to offer an opinion regarding whether the Veteran had arthritis of the cervical spine within one year of his service separation in January 1979, to include a description of the manifestations, if any. Finally, the examiner's rationale for her opinion that the Veteran's cervical spine condition was less likely than not incurred in or caused by a claimed in-service injury, event or illness was based on an inaccurate factual premise. In this regard, the examiner indicated that she was unable to identify any neck problems in the Veteran's service treatment records; however, such include an August 1977 clinical note reflecting complaints of a sore neck for one day. After a physical examination the assessment was a strain of the sternocleidomastoid/ trapezius muscle. Therefore, a remand is necessary to obtain an addendum opinion regarding the etiology of the Veteran's cervical spine disorder that complies with the Board's March 2012 remand directives. See Stegall, supra. Accordingly, the case is REMANDED for the following action: 1. The claims file should be returned to the March 2012 VA examiner for an addendum opinion. If the March 2012 VA examiner is no longer employed by VA or is otherwise unavailable, arrange to obtain the addendum opinion from another qualified examiner. The need for another examination is left to the discretion of the examiner selected to offer the requested opinion. The examiner must be given an opportunity to review the claims file, including a complete copy of this remand, for the pertinent medical and lay evidence. Thereafter, the examiner should offer an opinion as to whether it is at least as likely as not that any diagnosed cervical spine disorder (cervical disc disease and spondylosis of C5 as noted at the March 2012 VA examination) is etiologically related to the Veteran's military service, to include his in-service complaints of pain in the right upper back, clavicle, mid-thoracic back, or neck. In reaching an opinion, please comment on the significance, if any, of the August 1977 in-service complaints of a sore neck and the assessment of a strain of the sternocleidomastoid/ trapezius muscle. The examiner should also indicate whether the Veteran had arthritis of the cervical spine within one year of his service separation in January 1979 and, if so, s/he should describe the manifestations. The examiner should also offer an opinion as to whether the Veteran's cervical spine disorder is caused or aggravated by his service-connected lumbar spine disorder. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his cervical spine disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).