Citation Nr: 1322810 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 09-17 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected lumbar spine disability. WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran (Appellant or Claimant) had active duty service from April 1985 to January 1995, and had additional periods of active duty for training in the Air Force National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In December 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO), at the RO. A transcript of the hearing is of record. The Board previously remanded this matter for additional development in March 2012. The Veteran asserts that a cervical spine disorder is related to a service-connected lumbar spine disability. The Veteran's claim for service connection for a cervical spine disorder has been re-characterized to reflect the Veteran's contention. For reasons explained below, the issue of entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected lumbar spine disability, is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Service connection may be warranted for disability proximately due to or the result of a service-connected disability, referred to as secondary service connection. 38 C.F.R. § 3.310(a) (2012). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id.; see Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995); Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In a statement dated in March 2008, the Veteran alleged that his cervical spine disorder is worse because of his service-connected lumbar spine disability (disc bulging at L5-S1). The Veteran was afforded a VA examination of the cervical spine in April 2012, but the examination did not address whether the Veteran's cervical spine disorder is caused or aggravated by his service-connected lumbar spine disability. The April 2012 VA examiner's opinion provides an inadequate basis to adjudicate the claim for service-connection of a cervical spine disorder, including as secondary to service-connected disabilities because examination did not address the question of whether a cervical spine disorder was caused or aggravated (permanently worsened in severity beyond a normal progression) by the service-connected lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). An examination and medical opinion is necessary to adequately address the Veteran's theory of entitlement to service connection for a cervical spine disorder as secondary to a service-connected lumbar spine disorder. The Board also notes that, while the Veteran was provided with notice under the Veterans Claims Assistance Act of 2000 (VCAA) with regard to establishing service connection on a direct basis, he was not provided with notice of what type of information and evidence is needed to substantiate his claim for service connection for a cervical spine disorder on a secondary basis. Thus, on remand, the RO should provide corrective VCAA notice. Accordingly, the issue of service connection for a cervical spine disorder, including as secondary to the service-connected low back disability, is REMANDED for the following action: 1. The RO should send the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the Veteran about the evidence required to substantiate a claim for secondary service connection (38 C.F.R. § 3.310) with respect to the claim for service connection for a cervical spine disorder under the theory as secondary to the service-connected low back disability. 2. The Veteran should be scheduled for a VA examination of the cervical spine. The relevant documents in the claims file should be provided for the examiner's review, and the examiner should indicate in the examination report that the documents were reviewed. a. The VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that a current cervical spine disorder is proximately caused by the service-connected lumbar spine disability. b. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) a current cervical spine disorder is aggravated by the service-connected lumbar spine disability. If examiner opines that a cervical spine disorder is aggravated by the service-connected lumbar spine disability, the examiner must report the baseline level of severity of the nonservice-connected cervical spine disorder prior to the onset of aggravation. If some of the increase in severity of the nonservice-connected disability is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. A rationale should be given for all opinions and conclusions expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. 3. After completion of the requested development, the claim for service connection for a cervical spine disorder, including as secondary to a service-connected lumbar spine disability, should be readjudicated. If the benefit sought on appeal is not granted, the Veteran should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. 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 Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ J. PARKER 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).