Citation Nr: 1321695 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-49 618 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE 1. Entitlement to restoration of a 30 percent evaluation for residuals of injury, cervical spine with limitation of motion, post-traumatic arthritis, degenerative disc disease and radiculopathy of the right upper extremity. 2. Entitlement to an increased rating for the residuals of injury to the cervical spine with limitation of motion, post-traumatic arthritis, degenerative disc disease and radiculopathy of the right upper extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to July 1981 and from December 1987 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the RO. In that decision, the RO reduced the Veteran's disability rating for the residuals of injury to the cervical spine with limitation of motion, post-traumatic arthritis, degenerative disc disease and radiculopathy of the right upper extremity from 30 percent to 20 percent effective from March 1, 2009. 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 When a rating has been in effect for at least five years, 38 C.F.R. § 3.344 requires that the RO and the Board ensure that a rating reduction be based on an examination that is as complete as the examinations that formed the basis for the original rating and that the condition not be likely to return to its previous level. 38 C.F.R. § 3.344(a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344(c). In such cases 38 C.F.R. § 3.344(c) states that reexamination disclosing improvement will warrant reduction in rating. Of particular interest in this case is whether the Veteran has ankylosis of the cervical spine and if so the degree of such ankylosis. Based on May and September 2005 private treatment records and the results of a May 2006 VA examination, the RO determined that the Veteran's service-connected cervical spine disability was appropriately rated as 30 percent disabling under the diagnostic criteria (previously evaluated under Diagnostic Code 5290 for limitation of motion of the cervical spine (2002)) and continued this 30 percent rating in the November 2006 rating decision. To that end, the Board notes that a May 3, 2005 private treatment record reflects that the Veteran's cervical spine CT scan showed, in pertinent part, ankylosis throughout all the levels in his cervical spine. May 4, 2005 and September 2005 private treatment records reflect that review of imaging studies showed, in pertinent part, some ankylosis of the C7-T1 disc space. The May 2006 report of VA examination documents that the Veteran's forward flexion of the cervical spine was 30 degrees, with no additional loss of motion following repetitive testing. There was no indication of ankylosis of the cervical spine. Of particular note, the physician noted that the Veteran reported undergoing CT scan and x-ray of the cervical spine in April 2005, reports of which were not included in the claims file. A February 2009 statement from the Veteran's treating chiropractor indicates that he has unfavorable ankylosis of the entire cervical spine. However, the November 2009 report of VA examination reflects that the Veteran has no ankylosis of the cervical spine. Given this conflicting evidence regarding the existence (or lack thereof) of ankylosis, the Board finds that further review of the X-ray films, CT scans and MRIs of record is necessary to determine if the Veteran has ankylosis of the cervical spine and whether such ankylosis is in favorable or unfavorable position. The claim of entitlement to an increased rating for the cervical spine disability is inextricably intertwined with the claim for whether the reduction of the disability rating from 30 percent to 20 percent for the cervical spine disability was proper. Two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Here, the issue of whether the reduction of the disability rating from 30 percent to 20 percent for the cervical spine disability was proper might impact the rating for the cervical spine disability. Accordingly, action on the claim for increase must be delayed. Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action in order to obtain all of the actual X-ray films, digital film, CT scans and MRIs of the Veteran's cervical spine, to particularly include the April 2005 private CT scan and X-ray films that formed the basis of the private treatment providers' statements in May and September 2005; any X-rays, MRIs and CT Scans taken in conjunction with the Veteran's May 2006 and November 2009 VA examinations; and, any X-rays, MRIs and CT Scans used as the basis for the Veteran's private treating chiropractor's February 2009 statement. All records received by the RO must be added to the claims file. If the search for such records is unsuccessful, documentation to that effect must be added to the claims file. 2. Then all collected X-ray films, CT scans and MRIs should be forwarded to an appropriate reader for interpretation. Based on interpretation of the X-ray films, CT scans and MRIs, the orthopedist should determine whether the X-ray films, CT scans and/or MRIs demonstrate that the Veteran has ankylosis of the cervical spine and if so whether such ankylosis is in favorable or unfavorable position. All findings, along with the complete rationale for all opinions expressed, should be set forth in the report of the orthopedist. 3. If no X-Ray films, CT scans or MRIs are obtained, the RO should have the Veteran scheduled for a cervical spine X-ray, CT scan or MRI in order to determine whether the Veteran has ankylosis and if so whether such ankylosis is in favorable or unfavorable position. 4. After completing all indicated development, the claims should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Then, if indicated, this 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 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). _________________________________________________ H. N. SCHWARTZ 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).