Citation Nr: 1318026 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 10-17 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a cervical spine disability, to include on a secondary basis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from August 1954 to August 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. In February 2012, the Board issued a decision, in part, denying the issue of whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a cervical spine disability. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in an October 2012 Order, the Court vacated this portion of the February 2012 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand. In February 2013, the Board reopened and remanded the claim for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 While further delay is regrettable, the Board observes that additional development is still required prior to adjudicating the Veteran's claim for service connection for a cervical spine disability, to include on a secondary basis. The Veteran contends that that his cervical spine disability is caused by a 1954 in-service fall or, in the alternative, that it is secondary to his service-connected lumbar spine disability. He reports that that he has had neck pain for several years that has worsened over the years. An April 2005 VA examination report notes that the Veteran's cervical spine complaints began in the past year. The diagnosis was age-related degenerative arthritic changes of the cervical spine. The examiner opined that the Veteran's cervical spine condition was not caused by or the result of the Veteran's service-connected lumbar spine condition. Also of record is an October 2005 opinion from a private nurse practitioner who stated that the Veteran's 1954 in-service fall could have produced injuries not identifiable by x-ray at the time of the incident. The nurse practitioner respectfully disagreed with the VA's finding that the Veteran's cervical arthritis was not service-connected. The claim was remanded in February 2013 to schedule the Veteran for a VA examination. The examiner was instructed to provide an opinion regarding whether service connection for a cervical spine disability was warranted on either a direct or secondary basis (specifically on an aggravation basis). Review of the March 2013 cervical spine disability benefits questionnaire (DBQ) reveals that no opinion was rendered regarding whether service connection was warranted on a direct basis. In addition, the opinion regarding whether service connection was warranted on a secondary basis failed to consider the claim on an aggravation basis. Also, the examiner did not comment on the Veteran's contention of chronic neck pain over the years, findings made by the VA examiner in the April 2005 examination report, and the October 2005 letter from the private nurse practitioner, as requested by the Board in the February 2013 remand. In addition, the Board notes that a March 2013 VA x-ray report of the cervical spine revealed that a possible odontoid fracture could not be entirely excluded as the region of the odontoid was significantly obscured by the overlying structures. It was indicated that a CT scan may be of help to identify such a fracture. The March 2013 VA examiner did not discuss the significance of this x-ray report, specifically with regards to whether further testing by a CT scan is warranted in this case. In light of the above noted deficiencies, the Board finds that further VA examination is warranted. Where the remand orders of the Board 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). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Return the complete claims file, to include a copy of this remand, to the March 2013 VA examiner. Prior to drafting the opinion, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the claims folder and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether it is as least as likely as not the result of a disease or injury, if any, in service as opposed to it being more likely the result of some other cause or factors. The examiner should also provide an opinion as to whether a cervical spine disability is at least as likely as not caused by or aggravated by the service-connected lumbar spine disability as opposed to its being more likely the result of some other cause or factors. By aggravation the Board means a permanent increased in the severity of the underlying disability beyond its natural progression. In so doing, the examiner should comment on the Veteran's contention of chronic neck pain over the years; findings made by the VA examiner in the April 2005 examination report; the October 2005 letter from the private nurse practitioner; findings in the March 2013 examination report; and the significance, if any, of the March 2013 x-ray report of the cervical spine indicating that a CT scan may be of help in identifying a fracture. The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. If the March 2013 VA examiner is unavailable, another qualified examiner shall be requested to provide the above opinions. Should a new examination be required, one should be scheduled. The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2012). 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).