Citation Nr: 1313237 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 03-19 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for arthritis of the cervical spine. 2. Entitlement to an initial compensable evaluation for thoracolumbar strain, prior to September 11, 2010. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from June 1972 until his retirement in August 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for arthritis of multiple joints. This case has been before the Board on three previous occasions, most recently in July 2012, and has been remanded for additional development of the record and/or to ensure due process. In a February 2013 rating action, the RO granted service connection for thoracolumbar strain, right hip strain and left hip strain. This decision, accordingly, is limited to the issues set forth on the cover page. The issues of clear and unmistakable error in a September 1995 rating action that denied service connection for gastroenteritis, and the claim for a total rating based on individual unemployability due to service-connected disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran asserts service connection is warranted for arthritis of the cervical spine. The Board acknowledges that several opinions have been obtained addressing whether arthritis is related to a service-connected disability. However, there is no adequate opinion discussing whether a service-connected disability has worsened arthritis of the cervical spine. In its July 2010 and July 2012 remands, the Board has specifically directed that an opinion concerning aggravation of cervical spine arthritis should be obtained. The most recent opinion following the July 2012 VA examination fails to provide the necessary information. In Allen v. Brown, 7 Vet. App. 439 (1995), the United States Court of Appeals for Veterans Claims (Court) held that "disability" as set forth in 38 U.S.C.A. § 1110 (West 2002) "refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated." Thus, when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See also 38 C.F.R. § 3.310(b) (2012). The Veteran's claims folder was reviewed by a VA physician in July 2012. He stated that without a diagnosis related to the lumbar spine, there was no argument for secondary service connection or aggravation. Thus, he concluded that it was less likely than not that the lumbar spine condition, for which there is no impairing diagnosis, is secondarily caused or aggravated by his service-connected knee condition. The physician added that if the lumbar spine is not affected, it is extremely difficult to build a case for the cervical spine to be connected to the knee injury. He commented it was most unlikely that the cervical spine issue is related to the Veteran's knee condition. He reiterated that it was less likely than not that the cervical spine condition is secondary to or aggravated by his service-connected knee condition. Later in July 2012, the Veteran was examined by the same VA physician who prepared the opinion earlier that month. X-rays revealed spondylosis of the cervical spine. The diagnosis was cervical neck strain. The examiner opined it was less likely as not that the Veteran's neck condition was proximately due to or the result of a service-connected disability. He commented he could find no evidence that chronic knee disabilities can lead to neck disease. As noted above, the RO granted service connection for thoracolumbar strain in February 2013. Thus, one premise of the initial July 2012 opinion, i.e. that the lumbar spine is not affected, has been undermined. The Board observes that the opinion following the examination in July 2012 only addressed causation, and there was no mention of aggravation of a cervical spine condition. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). By rating action dated February 2013, the RO assigned a noncompensable evaluation for thoracolumbar strain, effective August 14, 2001, and a 10 percent evaluation for it, effective September 11, 2010. The Veterans representative submitted a notice of disagreement with the effective date that was assigned for the compensable rating, but a statement of the case has not been issued. Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). This matter must, accordingly, be remanded for issuance of a statement of the case. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran's claims folder to the examiner who conducted the July 2012 VA examination. The examiner should be requested to furnish an opinion concerning whether it is at least as likely as not (50 percent probability or higher) that any of the Veteran's service-connected disabilities, to include his bilateral knee disabilities, caused or aggravated (permanently worsened the underlying disorder beyond its normal course) the arthritis of the cervical spine. If aggravation occurred, the examiner should quantify, if possible, the extent to which the disability was aggravated. The rationale for any opinion should be set forth. If the examiner who conducted the July 2012 VA examination is not available, schedule a VA orthopedic examination and request the examiner respond to the question set forth above. 2. The RO should issue a statement of the case addressing the issue of an initial compensable evaluation for thoracolumbar strain, prior to September 11, 2010. The appellant and his representative should be afforded the appropriate period of time to respond. This issue should be returned to the Board only if the Veteran or his representative submits a timely substantive appeal. 3. Following completion of the above, the RO should review the evidence and determine whether the Veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. 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). _________________________________________________ MILO H. HAWLEY 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).