Citation Nr: 1327753 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 08-21 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for degenerative disc disease of the cervical spine, claimed as an upper back disability, to include as secondary to service connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to November 1971, from September 1972 to September 1975, and from January 1979 to November 1985. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in February 2009. A transcript of the hearing is associated with the claims file. The Board remanded this case for further development in November 2009, April 2011 and March 2013. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 Unfortunately the Board finds that the development in this matter continues to be inadequate, and a remand is again necessary. In March 2013, the Board found the record failed to contain an adequate opinion regarding the issue of secondary service connection for secondary service connection for the cervical spine disorder. More specifically, it was pointed out that the May 2011 VA examiner's opinion found that the Veteran's cervical spine disability was unlikely to have manifested as a result of the Veteran's military service or a service connected disability, to include right knee total knee arthroplasty, but no rationale was provided. The October 2011 addendum was noted to have provided rationale for the negative opinion regarding direct service connection, but not the negative opinion regarding secondary service connection. The Board remanded this matter to obtain an addendum opinion to better address whether any of the Veteran's multiple service-connected musculoskeletal disabilities (bilateral knee disabilities, right hip disability, degenerative disc disease of the lumbar spine, right great toe disability, and left middle finger disability) could be causing or aggravating the service connected cervical spine disability. It was also noted that he was service connected for non musculoskeletal disabilities too, specifically residuals of prostate cancer, posttraumatic stress disorder (PTSD), and erectile dysfunction, although he had not clearly articulated an association between such disorders and his cervical spine disorder. In April 2013, an addendum was obtained by the VA examiner who had provided the May 2011 VA examination and the October 2011 addendum. However this addendum essentially recites the findings and opinion from the May 2011 VA examination and October 2011 addendum, with a notation that the examination was completed on April 4, 2013. None of the inadequacies in the prior opinions have been addressed. The Board finds the addendum obtained in April 2013 is not in substantial compliance with the prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a suitably qualified VA examiner to determine the nature and etiology of the Veteran's claimed cervical spine disorder. The claims folder should be made available to and reviewed by the examiner. Specifically, the VA examiner should answer the following questions: a. Is it at least as likely as not (50 percent probability or more) that the Veteran's current degenerative disc disease of the cervical spine was caused (in whole or in part) by a service-connected disability? b. Is it at least as likely as not (50 percent probability or more) that the Veteran's current degenerative disc disease of the cervical spine was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability? The examiner is instructed that the Veteran's service connected disabilities include bilateral knee disabilities, right hip disability, degenerative disc disease of the lumbar spine, right great toe disability, left middle finger disability, residuals of prostate cancer, posttraumatic stress disorder (PTSD), and erectile dysfunction. If the Veteran's current degenerative disc disease of the cervical spine was aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. All opinions should be accompanied by clear rationale consistent with the evidence of record. If the examiner cannot respond without resorting to speculation, it should be explained why a response would be speculative. 2. The RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Thereafter, the RO/AMC should readjudicate the claim in light of the additional evidence obtained. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. 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). _________________________________________________ J. A. MARKEY 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).