Citation Nr: 1318536 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 05-27 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for degenerative changes of the cervical spine postoperative, to include as secondary to the service-connected lumbar disc disease. REPRESENTATION Veteran represented by: Lori Chism, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to March 1971, including service in Vietnam from October 1970 to March 1971. His military occupational specialty was Light Weapons Infantryman. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a decision in January 2009, the Board denied the issue of service connection for degenerative changes of the cervical spine postoperative, to include as secondary to the service-connected lumbar disc disease. In March 2009 the Veteran appealed the Board's January 2009 denial of his claim for service connection for a cervical spine disorder to the United States Court of Appeals for Veterans Claims (Court). In September 2009 the parties filed a Joint Motion for Remand to vacate and remand the Board's January 2009 decision; and in an Order dated in October 2009, the Court granted the parties' motion. In January 2010 the Board remanded the case for additional development. Unfortunately, the case must be returned for compliance with the Board's 2010 directives. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In the September 2009 Joint Motion for Remand the parties noted that neither the January 2009 Board decision nor the VA opinions in October 2004 and October 2006 mentioned the entry in service treatment records of pain "from the small of the back up" after the in-service accident that caused the Veteran's lumbar spine disorder, and which the Veteran contends led to his cervical spine disorder. Moreover, according to two of the Veteran's private physicians, the Veteran's cervical spine degenerative disease may be related to the fall during service and/or the ensuing injury to the lumbar spine. Specifically, the January 2004 statement from Dr. Renfro, a neurosurgeon, notes that it is "possible" that as a result of the Veteran's reported fall down a mountainside during service, he sustained cervical injury that progressed into a degenerative process causing arthritis which then progressed to the significant stenosis causing cord compression. Similarly, the March 2005 statement from Dr. King notes that, from the standpoint of etiology of arthritis and injury to his neck, there is always the possibility that the fall he sustained in Vietnam down a mountainside and the injury his neck received at that time could have led to this process. In its January 2010 remand the Board ordered that an attempt be made to obtain certain medical records referenced by the Veteran during his October 2008 Board hearing be obtained, including those from Dr. King and Dr. Renfro, and that the Veteran should thereafter be accorded a VA examination. In a letter dated in April 2010 the RO advised the Veteran that action on his claim had been delayed pending medical records from Dr. Leatherman and Dr. King. Unfortunately, there has been no attempt to obtain records from Dr. Renfro, as ordered by the Board in its January 2010 remand. In accordance with Stegall v. West, remand for compliance with the Board's 2010 remand directives is warranted. Stegall v. West, 11 Vet. App. 268, 270-71 (remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board's remand order). On remand the claims file should also be updated to include any additional relevant VA treatment records dated after January 2010. Bell v. Derwinski, 2 Vet. App. 611 (1992) (providing that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete the necessary authorization form for VA to request his treatment records from Dr. M.B. Renfro, Tyler Neurosurgical Associates, P.A., Tyler, Texas. After obtaining the form from the Veteran, request a copy of these records. If the requested records are not obtainable, the Veteran and his representative should be notified of such. In addition, relevant VA treatment records dating since January 2010 should be obtained from the Shreveport VA Medical Center, to include associated clinics. 2. After completion of the above and any other development deemed necessary after review of evidence received in response to the above, readjudicate the claim for service connection for degenerative changes of the cervical spine postoperative, to include as secondary to the service-connected lumbar disc disease. If the claim remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford the appropriate time period to respond. Then return the case to the Board for appellate review, unless otherwise indicated. 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 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). _________________________________________________ K.A. BANFIELD 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).