Citation Nr: 1324220 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 05-11 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a cervical spine disorder, including as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Robert Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to October 1967. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an April 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As support for his claim, the Veteran testified at a videoconference hearing in January 2012 before the undersigned Veterans Law Judge (VLJ) of the Board. In March 2012 the Board remanded the Veteran's claim for further development. The Board later issued a decision in July 2012 denying the claim, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court/CAVC). In February 2013 the Court granted a Joint Motion vacating the Board's denial of the claim and remanding the claim to the Board for further proceedings consistent with the Joint Motion. To comply with the Court's Order, the Board in turn is remanding the claim to the RO. REMAND The Veteran contends that his cervical spine disorder was caused or is being aggravated by his service-connected disabilities. At the conclusion of the May 2011 VA compensation examination, the examiner concluded the Veteran's cervical spine disorder was not caused by or a result of his service-connected left ankle disability. But as pointed out in the February 2013 Joint Motion for Remand (JMR), that examiner did not offer any opinion as to whether the Veteran's cervical spine disorder was being aggravated by a service-connected disability. Furthermore, following that May 2011 VA compensation examination, in a November 2011 rating decision the Veteran was granted service connection for an additional disorder, namely, a lumbar spine disability. Accordingly, an addendum opinion must be obtained from the May 2011 VA examiner to assist in determining whether the Veteran's cervical spine disorder was caused or alternatively is being aggravated by any service-connected disability. Two opinions are required for secondary service connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability? See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen, 7 Vet. App. 448; 38 C.F.R. § 3.310(b). Accordingly, this claim for a cervical spine disorder is REMANDED for the following additional development and consideration: 1. Request that the May 2011 VA examiner offer an addendum opinion. The entire claims file (i.e., any medical records contained in Virtual VA, CAPRI, and AMIE), including this REMAND, must be reviewed by the examiner in conjunction with the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner must provide an opinion as to the likelihood (very likely, as likely as not, or unlikely) that any current cervical spine disorder: (a) incepted during the Veteran's active military service from March 1966 to October 1967; (b) if involving arthritis, initially manifested to the required minimum compensable degree of at least 10-percent disabling within one year of his separation from service, so meaning by October 1968; or (c) his service-connected disabilities, either acting alone or together, i) caused his cervical spine disorder OR alternatively ii) have aggravated (meaning permanently worsened) his cervical spine disorder. *The examiner must be certain to comment on both causation and aggravation. *The examiner must also remain mindful that the Veteran has the following service-connected disabilities: carpal tunnel syndrome of the wrists, residuals of a left ankle injury, and degenerative disc disease of the lumbar spine. The supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why an opinion cannot be rendered. Mere saying (s)he cannot respond without resorting to mere speculation will not suffice. If, for whatever reason, this examiner is unavailable to provide this additional comment, then have someone else do it that has the necessary qualifications and expertise. In this eventuality, the Veteran may need to be reexamined, but this is left to the designee's discretion. If another examination is deemed warranted, advise the Veteran of the importance of reporting to this additionally scheduled VA examination and of the possible adverse consequences, including the possible denial of his claim, of failing without good cause to so report. 2. Ensure this supplemental medical opinion is responsive to these determinative issues of causation and aggravation or provides sufficient explanation as to why it cannot be. If it is not, take any needed corrective action. See 38 C.F.R. § 4.2. 3. Then readjudicate this claim for a cervical spine disorder in light of this and all other additional evidence, considering all potential bases of entitlement (direct, presumptive, and secondary). If this claim continues to be denied, send the Veteran and his attorney a Supplemental Statement of the Case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).