Citation Nr: 1321937 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 08-24 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right shoulder arthritis, to include as secondary to a service-connected lumbar spine disability. 2. Entitlement to service connection for right shoulder nerve damage, to include as secondary to a service-connected lumbar spine disability. 3. Entitlement to service connection for right elbow nerve damage, to include as secondary to a service-connected lumbar spine disability. 4. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected lumbar spine disability. 5. Entitlement to service connection for thoracic spine disability, to include as secondary to a service-connected lumbar spine disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served in the Army Reserve from September 1975 to January 1976. He had a period of active duty for training from November 27, 1975 to January 20, 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In June 2008, the Veteran testified at a hearing before a Decision Review Officer at the RO. A transcript of this hearing is associated with the claims file. In June 2009, the Veteran withdrew his request for a Board video conference hearing. See 38 C.F.R. § 20.704(e) (2011). In March 2010 and February 2012, the Board remanded these claims for further development. The issues have been recharacterized to comport with the evidence of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In February 2012, the Board remanded the claims of service connection for right shoulder, right elbow, cervical spine, and thoracic spine disabilities to afford the Veteran related VA examinations and obtain medical opinions addressing the Veteran's assertion that his service-connected lumbar spine disability (referred to as foraminal stenosis, degeneration of lumbar spine with radiculopathy, and bilateral sacroiliitis) had caused or aggravated these claimed disabilities. The Veteran underwent the requested VA examinations in March 2012, and the VA examiner who conducted all examinations opined that the Veteran's claimed disabilities were neither caused by nor aggravated by his service-connected lumbar spine disability. However, the examiner's proffered rationale for these medical opinions addressed only whether the Veteran's claimed disabilities were causally related to his service-connected lumbar spine disability, stating that a causal relationship could not be established because the claimed disabilities were of distinct clinical entities. Thus, the examiner offered no supporting rationale for his opinion regarding aggravation, thereby rendering this portion of the opinion inadequate. Accordingly, new opinions addressing whether the Veteran's claimed disabilities are aggravated by his service-connected lumbar spine disability must be obtained. 38 C.F.R. § 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Additionally, during his June 2008 RO formal hearing, the Veteran testified that he injured both his back and right elbow when falling during service, resulting in his current claimed right elbow disability and service-connected lumbar spine disability. Moreover, although not clearly asserted, the Veteran's testimony indicates that he views all of his various spinal disabilities (cervical, thoracic, and lumbar) as interrelated and posits that they all could stem from his in-service fall in which he injured his spine. The Veteran also specifically asserted that one of his treating physicians had related his current thoracic spine disability to his in-service fall (although no such opinion is of record). As the VA medical opinions addressing a theory of direct service connection of record fail to consider the impact of the Veteran's in-service injury on the development of his claimed disabilities, new medical opinions addressing a theory of direct service connection must be obtained. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination by an appropriate medical professional. The entire claim file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any current right shoulder arthritis, right shoulder nerve damage, right elbow nerve damage, cervical spine disability, or thoracic spine disability: (1) are directly related to service, to include the Veteran's in-service fall in which he reports injuring his back and elbow; or (2) are caused by or aggravated by the Veteran's service-connected foraminal stenosis, degeneration of lumbar spine with radiculopathy, and bilateral sacroiliitis. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 2. Review the claim file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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). These claims 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). _________________________________________________ RONALD W. SCHOLZ 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).