Citation Nr: 1321325 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 08-35 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a disability of the cervical spine to include as secondary to a disability of the service-connected thoracolumbar spine. REPRESENTATION Veteran represented by: Nicholas Parr, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1980 to June 1984 and from August 1984 to April 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's claims file. In a decision in December 2010, the Board reopened the claim of service connection for a lumbar spine disability and the remanded the claims of service connection for neuropathy of the right lower extremity, neuropathy of the left lower extremity, headaches, residuals of a right ankle injury, and residuals of a left ankle injury. The Board deferred a decision of the claim of service connection for a cervical spine disability until the other claims were finally adjudicated. While on appeal, in a rating decision in March 2013, the RO granted service connection for degenerative joint disease of the thoracolumbar spine with a scar, right lower extremity radiculopathy and neuropathy, left lower extremity radiculopathy and neuropathy, migraine and tension headaches, right ankle tendinitis, and left ankle tendinitis. As the claims of service connection were granted, the claims are no longer on appeal before the Board. The claim of service connection for a disability of the cervical spine is REMANDED to the Regional Office. REMAND On the claim of service connection for a disability of the cervical spine, the Veteran asserts that the disability is related to the service-connected disability of the thoracolumbar spine. The service treatment records show that in February 1983 the Veteran had shooting pain when her neck was flexed, but there was no numbness or tingling. The assessment was probable low back strain. After service, private and VA medical records show that in February 2007 after an MRI, the impression was disc protrusion at C5-C6 and at T2-T3. In August 2009, the impression was cervical spondylosis, herniated nucleus pulposus at C5-C6-C7, and myelopathy. In October 2009, the Veteran underwent a cervical discectomy and fusion at C5-C6 and at C6-C7, decompression of the cervical spinal cord at C5-C6 and C6-C7. On VA examination in May 2012, the VA examiner was unable to correlate the disability of the lumbar spine to the disability of the cervical spine. The VA examiner did not address the theories of direct service connection or of aggravation, since service connection for a disability of thoracolumbar spine had was not yet been granted. As the evidence of record is insufficient to decide the claim under the applicable theories of service connection, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination by a VA examiner, who has not previously examined the Veteran, to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that: The current disability of the cervical spine, cervical spondylosis and disc disease: i). Is related to the Veteran's complaints of cervical pain in October 1980 and in February 1983 and the history by the Veteran of numbness in her fingers during service or the development of new and separate condition; alternatively, ii). Is caused by or aggravated by the service-connected disability of the thoracolumbar spine with radiculopathy in the lower extremities? In this context, the term "aggravation" means a permanent increase in severity, that is, an irreversible worsening of the disability of the cervical spine as a result of the service-connected disability of the thoracolumbar spine beyond the natural clinical course of disc disease of the lumbar spine as contrasted to a temporary worsening of symptoms. In formulating the opinion, the VA examiner is also asked to consider that the Veteran is competent to describe symptoms of numbness in her fingers during service, even though there is a lack of contemporaneous medical evidence. Stated differently, whereas here, the Veteran has report symptoms during service, the absence of evidence in the service treatment records cannot be the sole basis for a negative opinion. If, after a review of the record, an opinion cannot be provided without resort to speculation, please clarify whether causation or aggravation cannot be determined because there are several potential etiologies, please identify the other potential etiologies, and that an opinion on causation or aggravation is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. The Veteran's file must be made available to the VA examiner for review. 2. After the above development is completed adjudicate the claim, including secondary service connection. If the benefit sought is denied, furnish the Veteran and her attorney 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 matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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. 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).