Citation Nr: 1326419 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 09-33 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a cervical spine (neck) disability. 2. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the thoracolumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran had a period of active duty for training from June 17 to September 26, 1987, as well as additional active service from November 1988 to November 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a rating decision of March 2011, the RO granted entitlement to service connection for posttraumatic stress disorder. Accordingly, that issue, which was formerly on appeal, is no longer before the Board. Finally, for reasons which will become apparent, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND A review of the record in this case raises some question as to the exact nature and etiology of the Veteran's disorder of the cervical spine, as well as the current severity of his service-connected degenerative joint disease of the thoracolumbar spine. In that regard, the Board notes that, while at the time of a VA orthopedic examination in December 2008, an opinion was offered regarding whether the Veteran's current cervical spine disability was in some way causally related to his service-connected degenerative joint disease of the thoracolumbar spine, no opinion was offered regarding whether the Veteran's cervical spine disability had in any way been aggravated (permanently made worse) by that same thoracolumbar spine disability. Such an opinion is necessary prior to a final adjudication of the Veteran's claim for service connection. Turning to the issue of an increased evaluation for service-connected degenerative joint disease of the thoracolumbar spine, the Board notes that the Veteran last underwent a VA examination for the purpose of determining the severity of that disability in June 2010, at this point, more than three years ago. Moreover, a review of the record would appear to indicate that, since the time of that examination, the Veteran has received continuing treatment for his disability of the thoracolumbar spine. Under the circumstances, the Board is of the opinion that an additional, more contemporaneous examination would be appropriate prior to a final adjudication of the Veteran's claim for increase. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, in light of the aforementioned, the case is REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to November 2012, the date of the most recent evidence of record, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. The Veteran should then be afforded an additional VA examination in order to more accurately determine the exact nature and etiology of his claimed disability of the cervical spine, as well as the current severity of his service-connected degenerative joint disease of the thoracolumbar spine. The Veteran is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his claims. The Veteran is further advised that the consequences for failure to report for a VA examination without good cause may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the examination, the examiner should specifically comment as to whether the Veteran currently suffers from a chronic, clinically identifiable disability of the cervical spine, and, if so, whether that disability is at least as likely as not proximately due to, the result of, or aggravated by the Veteran's service-connected disability of the thoracolumbar spine. In addition, and in accordance with the latest worksheets for rating disabilities of the thoracolumbar spine, the examiner is to provide a detailed review of the Veteran's pertinent history and complaints, as well as the nature and extent of his service-connected degenerative joint disease of the thoracolumbar spine. In particular, the examiner should specifically comment regarding any and all limitation of motion (including additional limitation of motion following repetitive use resulting from pain, weakness, fatigue, a lack of endurance, and/or incoordination), as well as the presence (or absence) of incapacitating episodes. The examiner should also discuss factors associated with disability, such as objective indications of pain on pressure or manipulation. Finally, the examiner should inquire as to whether the Veteran experiences flare-ups associated with his service-connected degenerative joint disease of the thoracolumbar spine. To the extent possible, any additional functional loss or limitation of motion attributable to such flare-ups should be described. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder must be made available to and reviewed by the examiner prior to completion of the examination. In addition, the examiner must specify in his report that the claims file and Virtual VA records have been reviewed. 3. The RO/AMC should then review the examination report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. The RO/AMC should then readjudicate the Veteran's claim for service connection for a disability of the neck (cervical spine), as well as his claim for an increased evaluation for service-connected degenerative joint disease of the thoracolumbar spine. Should the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claims for benefits since the issuance of the most recent SSOC in February 2013. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ MICHAEL D. LYON 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).