Citation Nr: 1319133 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 06-29 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a lumbosacral spine disability. 3. Entitlement to service connection for a right ankle disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the Army from July 1973 to July 1975. He also had additional service in the Army National Guard from September 1985 to June 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in January 2005 and in November 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2009, the Veteran appeared at a hearing before a Veterans Law Judge. A transcript of the hearing is in the Veteran's claims file. In August 2009, the Board remanded the claims of service connection for further development. In December 2011, the Veteran was notified that the Veterans Law Judge who conducted the hearing was no longer employed as he retired from the Board, and he was offered an opportunity to appear before another Veterans Law Judge who would make a decision on his appeal. The Veteran was afforded 30 days to respond and was notified that if no response was submitted, the Board would proceed with the appeal. The Veteran did not respond and the Board is proceeding with the appellate review. In March 2012, the Board remanded the claim of service connection for a cervical spine disability and for a lumbosacral spine disability for further development. The Board deferred a decision on the claim of service connection for a right ankle disability. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND This case was previously remanded by the Board in March 2012, in part, to afford the Veteran a VA examination. The VA examiner was asked whether any current cervical spine and lumbosacral spine disabilities were related to an injury during the Veteran's active duty for training in the National Guard in 1993. The VA examiner did not specifically address whether it was more likely than not, at least as likely as not, or less likely than not, that any current cervical spine and lumbosacral spine disabilities were related to an injury during active duty for training in the National Guard in 1993, as requested pursuant to the Board's remand in March 2012. A remand by the Board confers upon a Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the development requested pursuant to the March 2010 remand has not been accomplished, the Veteran must be afforded another VA examination. On the claim of service connection for a right ankle disability, the Veteran was examined by VA in September 2009. The VA examiner did not address the Veteran's statement that his right ankle injury during his period of active duty in the Army from July 1973 to July 1975 caused weakening of the right ankle that led to an additional injury later in 1975, as well as the subsequent fracture in 1982. As the evidence of record is insufficient to decide the claim, further development under the duty to assist is needed. Accordingly, the case is REMANDED for the following: 1. Afford the Veteran a VA examination, by a VA examiner who has not previously examined him, to determine: Whether it is more likely than not (greater than 50 percent probability), as likely as not (about 50 percent probability), or less likely than not (less than 50 percent probability) that the current cervical spine and lumbosacral spine disabilities are a progression of the neck and low back complaints during active duty from July 1973 to July 1975, as well as any injury during active duty for training in the National Guard in December 1993, or the development of new and separate conditions? In formulating an opinion, the VA examiner is asked to consider the following facts as determined by the Board: One witness, a former company commander, stated that during annual training in 1993, the Veteran injured his back, that he reported to sick call and was seen by medics, and that he was assigned to light duty for the remainder of his annual training. The Veteran is competent to describe neck and low back injuries during service and since service, and current symptoms that may form the basis of the diagnosis. The Board also finds the Veteran's statements regarding to be credible. The Veteran had cervical and low back problems, outside of his National Guard service, related to work beginning in September 1995, resulting in a worker's compensation claim. If after a review of the record, an opinion is not possible without resort to speculation, the VA examiner is asked to clarify whether the opinion cannot be rendered because there are other potential causes for the disabilities, please identify the other potential causes based on the evidence of record, when an in-service injury is not more likely than any other to cause any current disability and that an opinion on causation is beyond what may be reasonably concluded based on the evidence of record. The Veteran's file must be made available to the examiner for review. 2. Afford the Veteran a VA examination, by an examiner who has not previously examined him, to determine: Whether it is more likely than not (greater than 50 percent probability), as likely as not (about 50 percent probability), or less likely than not (less than 50 percent probability) that the current right ankle disability, including a right ankle fracture at work after service, is related to treatment for a right ankle injury during active duty from July 1973 to July 1975 or the development of new and separate condition? If the right ankle fracture in 1982 is unrelated to a right ankle injury during active duty from July 1973 to July 1975, then was the right ankle fracture aggravated by service in the National Guard from 1985 to 1999. In formulating the opinion, the term "aggravation" means a permanent or irreversible worsening of the preexisting condition beyond natural progress as contrasted to a temporary worsening or intermittent flare-ups of symptoms. Aggravation is not conceded if there was no increase in the preexisting condition on the basis of the evidence, pertaining to the manifestation of the disability before, during, and after service. If the preexisting right ankle disability increased in severity in service, is there obvious, that is, undebatable evidence, that the increase in the preexisting condition during active service was due to the natural progress of the preexisting condition. In formulating an opinion, the VA examiner is asked to consider the following facts as determined by the Board: The Veteran is competent to describe a right ankle injury during service and since service, and current symptoms that may form the basis of the diagnosis. The Board also finds the Veteran's statements regarding to be credible. If after a review of the record, an opinion is not possible without resort to speculation, the VA physician is asked to clarify whether the opinion cannot be rendered because there are other potential causes for the disabilities, please identify the other potential causes based on the evidence of record, when an in-service injury is not more likely than any other to cause any current disability and that an opinion on causation is beyond what may be reasonably concluded based on the evidence of record. The Veteran's file must be made available to the examiner for review. 3. After the above development is completed, adjudicate the claims. If any benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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). The 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). _________________________________________________ George E. Guido Jr. 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).