Citation Nr: 1320671 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 06-28 215A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a cervical spine disability, to include as secondary to the service-connected bilateral rotator cuff tendinitis with degenerative joint disease. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from May 6, 1975 to September 12, 1975 with subsequent active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas and May 2011 and September 2012 Bpard remands. In July 2010, the Veteran, along with his wife, appeared at the RO and provided testimony before the undersigned Acting Veterans Law Judge. A transcript of that hearing was produced and has been included in the claims folder for review. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking service connection for a cervical spine disability on a direct service connection basis and as secondary to his service-connected bilateral rotator cuff tendinitis with degenerative joint disease. After carefully considering this matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for additional development. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of two previous remands. However, the Board believes that another remand is necessary to ensure full compliance with VA's statutory duty to assist. Pursuant to the September 2012 remand, the Veteran was afforded a VA examination to determine the etiology of his cervical spine disability in March 2013. After reviewing the Veteran's claims file and conducting a physical examination, the VA examiner stated that the Veteran's cervical spine disability was not incurred in, or caused by his claimed in-service injury. The examiner also stated that it is less likely than not (less than 50 percent probability) that the Veteran's cervical spine disability is proximately due to or the result of his service-connected bilateral rotator cuff tendinitis with degenerative joint disease. The March 2013 VA examiner, however, did not appear to provide an opinion as to whether the Veteran's service-connected rotator cuff disabilities may have aggravated his cervical spine disability. The Board notes that the format of the examination and opinion report make it difficult to discern the examiner's conclusions and rationale. Therefore, the Board finds that a clarifying medical opinion is necessary. The record also indicates that the Veteran has been receiving ongoing VA treatment from the VA Medical Center (VAMC) in Austin, Texas. On remand, the Veteran's treatment records should be obtained and associated with his claims folder. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet.App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and ask that he identify the names and addresses of all VA and non-VA health care providers who have treated him for his cervical spine disability. After procuring authorization from the Veteran for release of all identified records, as appropriate, the RO should obtain copies of all such records. The RO should also obtain any ongoing treatment records from the VAMC in Austin, Texas. All efforts to obtain such records should be documented in the claims folder, and all available records should be associated with the claims folder. 2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of his cervical spine disorder from a VA examiner. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. The examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disorder was aggravated by the service-connected bilateral rotator cuff tendinitis with degenerative joint disease. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the examination report is deficient in any manner, the RO/AMC must implement corrective procedures. Stegall v. West, 11 Vet.App. 268, 271 (1998). 5. After completing all indicated development, the RO/AMC should readjudicate the Veteran's claim in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive SSOC and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 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. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).