Citation Nr: 1323610 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 08-35 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for cervical spine injury residuals. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL The Veteran, the Veteran's spouse, and the Veteran's son ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran had active service from February 1976 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office. In August 2010, the Veteran, the Veteran's spouse, and the Veteran's son testified at a videoconference hearing before the undersigned Veterans Law Judge in Washington, D.C., and a transcript of this hearing is of record. In December 2011, the Board denied the Veteran's claim, and the Veteran timely appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2013, pursuant to a Joint Motion for Remand (Joint Motion), the Court vacated and remanded the Board's December 2011 decision for proceedings consistent with the terms of the Joint Motion. 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 The February 2013 Joint Motion found that the Board's December 2011 discussion relating to continuity of symptomatology was inadequate. The Board found the Veteran to be an incredible historian with respect to his recounted history of a right shoulder injury, and it thus found that the probative evidence was against the Veteran's claim based on a continuity of symptomatology. The Court indicated that the Board's discussion failed to adequately consider evidence suggesting that the Veteran's right arm was injured in service. Since the time of the Court's February 2013 Order and Joint Motion, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has provided guidance regarding establishing service connection based on a continuity of symptomatology. More specifically, the Federal Circuit found that a "continuity of symptomatology" as specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases set forth in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). These specified chronic diseases include, in pertinent part, arthritis. See 38 C.F.R. § 3.309 (2012). Therefore, to the extent that the Veteran's claimed disability represents an arthritic process, it may be demonstrated via a continuity of symptomatology; to the extent the Veteran's claimed disability is not otherwise among the disabilities set forth in 38 C.F.R. § 3.309, it may not be established based upon a continuity of symptomatology alone. See Walker. In order to afford the Veteran with every possible consideration, the Veteran should be provided with an additional examination pursuant to the guidance provided in the Joint Motion. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with a medical doctor. The examiner must review the claims file and must note that review in the report. The rationale for all opinions must be provided. The examiner must address the following questions: a) Describe the nature of the Veteran's cervical spine injury residuals in detail, and indicate whether the Veteran currently suffers from arthritis. b) Opine as to whether it is at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's cervical spine injury residuals are related to any event or injury during the Veteran's service. This opinion must specifically address the following evidence in the Veteran's service treatment records: (i) The November 1977 x-ray report that appears to indicate that x-rays were taken of the right shoulder, rather than the left. (ii) An undated treatment note from the United States Army Troop Health Clinic in Knielingen, Germany, time-stamped "0910," which appears to state that a "piece of bridge" fell on the Veteran's right shoulder and caused him to buckle under the weight. 2. Then, readjudicate the issue on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter that 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 Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ F. JUDGE FLOWERS 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 Court. 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).