Citation Nr: 1324427 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 10-07 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an esophagus disability, to include as secondary to a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel REMAND The Veteran served on active duty from August 29, 1984, to May 31, 2006; he had 6 months and 15 days of active service prior to August 29, 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2007 and December 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran contends that his current esophagus symptoms, including dysphagia, were caused by his service-connected cervical spine disability, status post cervical spine fusion. In September 2008, a VA examiner stated that given the Veteran's daily symptoms, he would probably benefit from a work up, including an esophagogastroduodenoscopy (EGD), motility study, and reassessment of the cervical spine with imaging, as both post-surgical scarring and/or resurfacing of the spine/disc disease can give similar symptoms. The examiner stated that if that work up was negative, the Veteran's esophagus symptoms were likely related to the cervical spine surgery. The Veteran underwent an EGD and a motility study; however, his cervical spine was not reassessed by any imaging study. The Board finds that, given the September 2008 examiner's opinion, this diagnostic assessment must be performed. A VA examiner provided a follow-up opinion considering the EGD and motility study results in November 2009. Once the diagnostic testing of the cervical spine has been completed, the claims file should be forwarded to the same VA examiner, if available, for consideration of the new diagnostic testing results. The examiner is asked to specifically respond to the September 2008 VA examiner's opinion that negative diagnostic test results would mean that the Veteran's current esophagus symptoms would likely be due to the service-connected cervical spine disability. In addition, the examiner is asked to respond to the Veteran's assertions that he was informed by his surgeon that a certain amount of dysphagia would be expected due to his cervical spine fusion surgery, that his fusion surgery was atypical or more severe than most, and that residuals related to the gastroesophageal reflux disease (GERD) and esophagitis have actually healed and, therefore, are not causing his current symptoms. If the same examiner is not available, the claims file, including a copy of this remand and the last VA opinions, should be forwarded to a qualified physician for a new opinion consistent with this remand. Accordingly, the case is REMANDED for the following action: 1. Ensure that the Veteran is provided the diagnostic testing discussed by the September 2008 VA examiner, including the cervical spine imaging. Associate the report(s) with the paper or virtual claims file. 2. The claims folder, including this remand and any relevant records contained in the Virtual VA system must be forwarded to the November 2009 VA examiner, if available, in order to obtain an opinion in light of the new diagnostic evidence. Considering the diagnostic testing results, including cervical spine imaging, the examiner is requested to state whether there is scarring due to the cervical spine fusion or whether the cervical spine disease has either caused or made worse any esophagus problem, including dysphagia. If the testing performed is not adequate to make this determination, additional testing should be performed as necessary. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current esophagus disability, including a disability manifested by dysphagia, had its onset in service or is otherwise caused or made worse by disease or injury attributable to military service, including the cervical spine fusion surgery. The examiner should clearly state the medical probabilities that any esophagus disability was either (a) proximately caused by or (b) made chronically worse by his service-connected status post cervical spine fusion. If the examiner believes an esophagus disability is as likely as not aggravated (made chronically worse) by the cervical spine disability, although not directly caused by it, the examiner should indicate the degree of additional impairment caused by the cervical spine disability beyond the natural progress of the disease prior to the impairment, in terms conforming to the rating schedule. The examiner should then provide thorough reasons for the opinions that specifically take into account the Veteran's reports of his history, the reported in-service injuries or events, and his current symptoms. As summarized above, the Veteran has stated that he was informed by his surgeon that a certain amount of dysphagia would be expected due to his cervical spine fusion surgery, that his fusion surgery was atypical or more severe than most, and that residuals related to the gastroesophageal reflux disease (GERD) and esophagitis have actually healed and, therefore, are not causing his current esophagus symptoms. The examiner must specifically respond to each assertion. In addition, the examiner is requested to respond to the September 2008 VA examiner's opinion that, if all requested diagnostic studies are negative, the current esophagus symptoms should be considered likely due to the cervical spine surgery. The examiner is asked to comment as to whether there is scarring due to the cervical spine fusion or whether the cervical spine disease has resurfaced. If so, the examiner is asked to specifically state whether the Veteran's esophagus symptoms were proximately caused or aggravated as a result. If the November 2009 VA examiner is unavailable, the case should be referred to another qualified physician to obtain the requested opinions. If further examination is deemed necessary by an examiner, this should be conducted. 3. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and explanations required by this remand. 4. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence. If the benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 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 2002 & Supp. 2013). ________________________________ MARK F. HALSEY 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 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).