Citation Nr: 1326792 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-18 840A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a cervical spine disability, other than cervical herniated nucleus pulposus, to include as secondary to service-connected disability. 2. Entitlement to service connection for a right foot disability, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from May1990 to February 1995, and from July 1995 to December 1996. This matter comes before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Although the cervical spine issue certified to the Board was for cervical spine arthritis, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue has been recharacterized to comport with the record. 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 The Veteran seeks service connection for cervical spine arthritis and a right foot condition, to include as secondary to service-connected cervical herniated nucleus pulposus. Although the January 2008 rating decision notes no complaints, treatment or diagnosis of a right foot condition during service, a July 1990 record reflects complaints of numbness in the right foot, and right foot pain and decreased sensation in the right foot were attributed to Achilles tendonitis and subjective hypoesthesia in October 1990. A January 1991 physical therapy consultation record reflects complaints of tenderness and pressure over the plantar surface of the right foot noted to be probably secondary to fasciitis. VA treatment records reflect complaints of pain in the right foot in July 1997, and in the right great toe in September 1997. On VA examination in May 1995, the impression was lumbosacral strain with pain radiating in to the right leg and feet. The Veteran's service-connected disabilities include lumbosacral strain. The November 2007 VA examination report reflects a diagnosis of bilateral plantar fasciitis. No opinion was provided as to whether the Veteran's current right foot disorder is directly related to service or caused or aggravated by service-connected disability, to include cervical herniated nucleus pulposus and lumbosacral strain. The opinion is inadequate. With respect to the cervical spine, the May 1995 VA examination report reflects a diagnosis of cervical strain. Although the impression of x-ray examination of the cervical spine in May 1995 was normal vertebral bodies and alignments, a February 1998 treatment record reflects degenerative cervical arthritis. Although the November 2007 VA examiner stated that it is less than likely that the Veteran's cervical spine arthritis is caused by service-connected cervical herniated nucleus pulposus, no opinion was provided as to or whether the cervical spine arthritis is aggravated by the cervical herniated nucleus pulposus, or whether cervical spine arthritis had an onset during service or within the initial year after separation. The opinion is inadequate. Lastly, a March 1997 rating decision indicates the Veteran may have participated in a VA vocational rehabilitation program. The vocational rehabilitation folder has not been associated with the claim file. In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, the vocational rehabilitation folder is to be associated with the claim file. Accordingly, the case is REMANDED for the following action: 1. Associate the Veteran's VA vocational rehabilitation folder with the claim file. 2. Schedule the Veteran for a VA cervical spine and foot examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to conduct all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that cervical spine arthritis had its onset during service or within the initial year after separation, or whether any cervical spine disorder, to include arthritis and sprain, or right foot disorder, to include plantar fasciitis, is related to service or is caused or aggravated by service-connected disability, to include cervical herniated nucleus pulposus and lumbosacral strain. The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then, readjudicate the appeal. If either benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ RONALD W. SCHOLZ 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).