Citation Nr: 1326805 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-08 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected degenerative disc disease of the cervical spine. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected degenerative disc disease of the cervical spine. 3. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the cervical spine (cervical spine disability), prior to November 19, 2009. 4. Entitlement to a higher initial rating for cervical spine disability, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from November 1979 to November 1980, January 1981 to July 1981, and from June 1986 to September 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for cervical spine disability and assigned a 10 percent rating, effective October 30, 2008. In a December 2009 rating decision increased the rating for the cervical spine to 20 percent, effective November 19, 2009. In that same rating decision, the RO also denied service connection for right shoulder and low back disabilities. 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 As to the Veteran's of service connection for a right shoulder disability, he was afforded a VA examination in December 2009 to determine the etiology of his right shoulder disability. On December 2009 VA examination, he was diagnosed with right shoulder rotator cuff tendinitis. It was opined that it was not at least as likely as not that the right shoulder disability occurred during his service, noting that there was no documentation of such an injury or treatment for it in the claims file. The Board finds that this opinion is inadequate because the examiner did not address whether the Veteran's right shoulder disability was caused by or aggravated by his cervical spine disability. See Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (multiple theories constitute the same claim if they "pertain to the same benefit for the same disability"). Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for a proper appellate decision"). On remand, the Veteran should be afforded another examination to obtain a nexus opinion as to the etiology and onset of his right shoulder disability, to include as secondary to his service-connected cervical spine disability. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). As to the claim for service connection for a low back disability, the Veteran was afforded a VA examination in December 2009; the diagnosis was degenerative disc disease of the lumbosacral spine. It was opined that the disability was most likely age related, and not likely to be related to his cervical spine symptoms. The Board finds that this opinion is inadequate. First, the United States Court of Appeals for Veterans Claims has indicated that "not due to," "not caused by," or "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 449 (1995). Under governing caselaw, the December 2009 opinion does not address the matter of aggravation. Secondly, although to one trained in medicine the basis for the examiner's conclusion that the Veteran's degenerative disc disease was most likely age related may be obvious from the record, caselaw essentially requires the basis for the opinion to be expressed in order to afford it evidentiary weight. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). On remand, the Veteran should be afforded another examination to obtain a nexus opinion as to the etiology of his low back disability, to include as secondary to his service-connected cervical spine disability, including consideration of aggravation. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the claim for higher ratings for his cervical spine disability, the Veteran was last afforded a VA examination to ascertain the severity of his disability in December 2009. In his February 2010 VA Form 9, he stated that there was no measuring device used in determining the range of motion of his cervical spine, and that there are times when his range of motion without pain is nearly zero degrees. In light of the Veteran's contentions questioning the adequacy of the December 2009 examination and the state of the record, the Board finds that VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his cervical spine disability. Thus, this issue must be remanded. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide sufficient information, and if necessary, authorization, to enable the RO to obtain any additional evidence pertinent to his claims on appeal that are not otherwise of record. After securing the necessary authorizations for release of this information, the RO should undertake appropriate efforts to attempt to obtain any identified records. The RO must make at least two requests to any custodian of private records, if relevant, in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records. Any negative response should be in writing and associated with the claims file. All development efforts should be associated with the claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature and extent of his in-service and post-service right shoulder and/or low back symptoms, as well as any relationship between these disabilities and his cervical spine disability. He should also be invited to submit statements from himself and from others who have first-hand knowledge of the nature, extent and severity of his cervical spine disability and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After the above has been completed, the RO should schedule the Veteran for a VA examination to determine the current nature, onset and likely etiology of any right shoulder and low back disability found to be present. The claims file should be made available and reviewed by the examiner. All indicated studies should be performed, and all findings should be reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not any diagnosed right shoulder and low back disability is related to or had its onset in service, specifically acknowledging and discussing the Veteran's duties as a fighter pilot during active service. The examiner must also provide an opinion as to whether it is at least as likely as not that the Veteran's current right shoulder and low back disabilities were caused or aggravated by his service-connected cervical spine disability. Aggravation is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The examiner should provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so, to include a recitation of any missing facts necessary to render a non-speculative opinion. 4. Obtain a VA spine examination to determine the current severity of his cervical spine disability. The claims file should be made available and reviewed by the examiner. The examiner should identify all cervical spine orthopedic pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's cervical spine. In addition, if possible, the examiner should state whether the cervical spine disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. The examiner must also discuss the nature and severity of any objective neurologic abnormalities, including right and/or left upper extremity impairment, as well as headaches, related to his cervical spine disability. In addition, the examiner should fully describe the functional effects caused by the cervical spine disability, including specifically, the impact of such on his employability. All opinions must be supported by a complete rationale in a legible report. 5. Then readjudicate the issues on appeal. If the benefits sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case and given a reasonable opportunity to respond. 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). 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). _________________________________________________ STEVEN D. REISS 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).