Citation Nr: 1324387 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 07-09 983A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an initial disability rating greater than 20 percent for degenerative disc disease of the cervical spine, with radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to September 2005. He was awarded the Combat Infantry Badge, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 RO decision. The Veteran presented sworn testimony in support of his appeal during an October 2007 hearing at the RO. The Board remanded the matter in May 2010 and in December 2012 for further evidentiary development. 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the appellant's claims. See 38 C.F.R. § 19.9 (2012). Unfortunately, the record reflects that there was a lack of substantial compliance of the December 2012 Board remand instructions as to the VA examination only. See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders). The requested VA examination was not performed; the March 20, 2013, one-paragraph statement does not clearly reflect the current nature and severity of the service-connected cervical spine disability. For example, no range of motion test results were provided. In addition, short addendum medical opinions developed in April and May 2013 did not address all the medical opinions requested, including the requested comment upon the Veteran's apparent increased range of cervical spine motion during the appeal period. Ongoing VA medical records should also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. VA treatment records from the Fayetteville VA Medical Center and all related clinics, dated subsequent to October 2011 should be obtained for inclusion in the paper claims files (or the Virtual VA eFolder). 2. Thereafter, the Veteran should be afforded an appropriate VA examination by a physician to identify all currently-shown impairment involving his cervical spine. All tests and studies deemed helpful by the examiner should be conducted in conjunction with the examination, to include nerve testing, as indicated. (If nerve testing is not indicated, the reason for this determination should be clearly explained in the examination report.) The claims folders must be made available to the examiner for review in connection with the examination. The examiner is requested to discuss all functional impairment and pain involved with the Veteran's cervical spine. In particular: a. The examiner is requested to comment upon the nature and extent of the cervical radiculopathy prior to the time that it resolved with traction (see October 21, 2011 VA treatment record); and b. The examiner is requested to comment upon the Veteran's apparent increased range of cervical spine motion during the appeal period. The complete rationale for all opinions expressed should be fully explained. 3. After the development requested above has been completed, the RO should again review the record, to include explicit consideration as to whether a separate disability rating for nerve impairment related to the Veteran's service-connected cervical spine disc disease is warranted. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ ROBERT E. SULLIVAN 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).