Citation Nr: 1314642 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-26 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for degenerative disk disease of the lumbar spine. 2. Entitlement to service connection for left shoulder strain as secondary to service-connected degenerative disk disease of the lumbar spine. 3. Entitlement to service connection for left hand/wrist condition as secondary to service-connected degenerative disk disease of the lumbar spine. 4. Entitlement to service connection for degenerative changes of the cervical spine as secondary to service-connected degenerative disk disease of the lumbar spine. ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from June 1961 to May 1964 and from May 1979 to November 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals VA treatment records dated through September 2012 that were considered 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 any action on his part is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). Relevant to the Veteran's claim for an increased rating for his back disability, he indicated in correspondence received by the Board on April 17, 2013 (and associated with the claims file on April 23, 2013), that he is awaiting another MRI and consult with his neurosurgeon to evaluate possible back surgery. The most recent treatment records contained in the claims file are dated through September 2012 from the Mount Vernon, Missouri, VA Outpatient Clinic. Furthermore, he has indicated that he has also received treatment for his back disability from the VA facilities in Fayetteville, Arkansas; Denver, Colorado; and Columbia, Missouri. Records from the Mount Vernon and Fayetteville VA facilities dated from April 2009 to September 2012. Additionally, a handwritten note indicated that there were no treatment records for the Veteran from the Columbia VA facility; however, it does not appear that the Veteran was advised of such inability to obtain records. However, it does not appear that records from the Denver VA facility were requested. Therefore, on remand, all VA treatment records from the Mount Vernon, Fayetteville, Denver, and Columbia VA facilities dated from May 2008 to the present that are not already contained in the claims file should be obtained for consideration in the Veteran's appeal. Additionally, if such records do not exist or are unavailable, the Veteran should be so informed. In his April 2013 statement, the Veteran also indicated that he had recently applied for VA vocational rehabilitation benefits. As such, while on remand, his vocational rehabilitation folder should be obtained for consideration in his appeal. The Board notes that the Veteran was most recently examined by VA regarding the severity of his back disability in October 2012. Therefore, upon receipt of any additional records received in connection with the foregoing requests, the AOJ should review such records and, if they suggest an increase in severity of the Veteran's back disability, he should be afforded another VA examination. The Board also observes that a December 2010 MRI revealed impingement of the right L5 nerve root and the October 2012 VA examination noted the presence of mild right lumbar radiculopathy. In this regard, the Veteran's back disability is rated pursuant to The General Rating Formula for Diseases and Injuries of the Spine, which provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. See Note (1). Therefore, in the readjudication of the Veteran's claim for an increased rating for his back disability, the AOJ should specifically consider whether he is entitled to separate ratings for any neurological impairment, to include mild right lumbar radiculopathy. Relevant to the Veteran's secondary service connection claims (i.e., cervical spine arthritis, left shoulder strain, and left hand/wrist disorder), the Veteran underwent a VA examination in September 2009 so as to address whether such disorders were secondary to his service-connected low back disability. Following evaluation of the Veteran and review of his claims folder, the examiner essentially opined that the issues could not be resolved without resort to mere speculation. Regarding the left shoulder and left wrist/hand, the examiner reasoned that, due to the absence of radiographic evidence indicating a specific injury it would require mere speculation to assign cause to any particular etiology. Regarding the cervical spine, the examiner reasoned that it would require mere speculation to assign all causative factors to biomechanical changes in the cervical spine due to the Veteran's altered body mechanics. The Board further notes that the September 2009 VA examiner provided no opinion as to whether the Veteran's disorders were aggravated by his service-connected low back disability. In this regard, an opinion which discusses only causation, however broadly, cannot be construed to encompass a medical determination as to aggravation. Allen v. Brown, 7 Vet. App. 439, 449 (1995)("[I]t is a big stretch of the English language to construe the phrase 'no etiological relationship between the Veteran's service-connected right knee arthritis and the subsequent onset of left knee and bilateral hip arthritis' as encompassing aggravation.") Additionally, once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, as the opinions are inadequate, the Board finds that a remand is required in order to obtain addendum opinions. Finally, while on remand, all VA records pertaining to the Veteran's left shoulder, cervical spine, and left wrist/hand disorders should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following: 1. Obtain all VA treatment records pertaining to the Veteran's back, left shoulder, cervical spine, and left wrist/hand disorders from Mount Vernon, Fayetteville, Denver, and Columbia VA facilities dated from May 2008 to the present that are not already contained in the claims file. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain the Veteran's VA vocational rehabilitation folder. 3. Relevant to the Veteran's claim of entitlement to an increased rating for his back disability, upon receipt of any additional records received in connection with the foregoing requests, the AOJ should review such records and, if they suggest an increase in severity of the Veteran's back disability, he should be afforded another VA examination. 4. After obtaining all outstanding records, forward the Veteran's claims file, to include a copy of this remand, to an appropriate VA examiner (other than the September 2009 VA examiner) to ascertain the etiology of his cervical spine, left shoulder, and left wrist disorders. The need for an examination of the Veteran is left to the discretion of the VA examiner selected to offer the requested opinions. After a complete and thorough review of the file the examiner should address the following inquiries. Specifically, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's cervical spine, left shoulder, and left hand/wrist disorders were caused OR aggravated by his service-connected low back disability. By aggravation, the Board means a permanent increase in the underlying severity of the disabilities that is beyond natural progression. In rendering any opinion, the examiner must consider the full record, to include all medical and lay evidence of record regarding the Veteran's cervical spine, left shoulder, and left wrist. All opinions expressed should be accompanied by supporting rationale. 5. 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 claims should be readjudicated based on the entirety of the evidence. In adjudicating the Veteran's claim for an increased rating for his back disability, the AOJ should specifically consider whether he is entitled to separate ratings for any neurological impairment, to include mild right lumbar radiculopathy. If a claim remains denied, the Veteran 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. 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 matters the Board has remanded. 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). _________________________________________________ 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).