Citation Nr: 1324066 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 07-23 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a cervical spine condition, to include as secondary to a service connected jaw condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active service from January 1963 to October 1965. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, dated in September 2006, and August 2008 which, among other things, denied the Veteran's claim for service connection for a cervical spine disorder, to include as secondary to a jaw condition. In June 2009, the Veteran testified before a Veterans Law Judge at the RO (Travel Board hearing); a copy of the transcript has been associated with the record. In January 2010, the Board remanded this issue to the RO via the Appeals Management Center (AMC) for additional development. In August 2011, the Board issued a decision denying the claim along with three other claims for service connection. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court) with regard to the instant claim and two of the other three claims that were denied. In December 2012, Court issued a memorandum decision (1) noting that the unappealed claim was abandoned, (2) vacating the Board decision as to the instant claim and remanding the matter to the Board, and (3) affirming the Board decision as to the other two claims for service connection that had been appealed. 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 In the memorandum decision, the Court held that the Board erred when it found that a March 2010 VA examiner's opinion substantially complied with its January 2010 remand order. The Court notes that the opinion was inadequate because it did not address whether the cervical spine condition was aggravated by the Veteran's service-connected residuals of jaw surgery, as required in the remand. The Court points out that, as the examiner failed to discuss this theory of service connection despite the Board's order to do so, the opinion does not substantially comply with the remand order. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that 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. 38 C.F.R. § 3.310(b). Additionally, the Board member who conducted the June 2009 Board hearing is no longer employed at the Board. The Board sent the Veteran notification of this fact in June 2013 and informed him that he is entitled to a hearing before another Veterans Law Judge. See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). In a response received at the Board in July 2013, the Veteran indicated that he wished to be scheduled for a hearing at the RO before a Veterans Law Judge. As the RO/AMC schedules Travel Board hearings, a remand of this matter to the RO/AMC is warranted. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take appropriate action to schedule the Veteran for a hearing before a traveling Veterans Law Judge at the RO. A copy of the letter scheduling the Veteran for that hearing, with a copy to his representative, should be included in the claims file. 2. The RO/AMC should arrange for the Veteran to undergo an orthopedic VA examination to determine the nature and etiology of the Veteran's current cervical spine disorder. He is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences for his claim. The examination should include any diagnostic testing or evaluation deemed necessary. And the claims file, including a complete copy of this remand, must be made available for review of his pertinent medical history-including, in particular, the records of the treatment in question. The examination report must indicate that such review was accomplished. Based on a physical examination and comprehensive review of the claims file, the examiner is asked to provide an opinion responding to the following questions regarding the Veteran's cervical spine disorder: A) Is it at least as likely as not (50 percent or more probable) that his current cervical spine disorder is directly related to the Veteran's service, in particular the Veteran's in-service jaw surgery? B) If the answer is no, is it at least as likely as not that the Veteran's cervical spine disorder is due to the Veteran's service-connected residuals of a jaw surgery? C) If the answer is no, is it at least as likely as not that the Veteran's cervical spine disorder has been aggravated by the Veteran's service-connected residuals of a jaw surgery beyond the natural progression of the disorder? If the examiner is of the opinion that a cervical spine disorder has been aggravated by service-connected disability, the examiner should identify the baseline level of the cervical spine disorder and the degree of disability due to aggravation. If the etiology of the Veteran's cervical spine disorder is attributed to multiple factors/events, the examiner should specify which disorders are related to which factors/events, and to what degree the Veteran's current disorders are the result of each factor. The examiner must address the Veteran's history of an in-service jaw surgery as well as the private medical evidence which has been provided by the Veteran. If the requested medical opinions cannot be given, the examiner should state the reason why. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the Veteran's claim. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matters 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 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). _________________________________________________ BETHANY L. BUCK 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).