Citation Nr: 1328385 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 08-35 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for neck or cervical spine disability to include arthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nancy Rippel, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to August 1980 and from August 1980 to June 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2007 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The January 2007 rating decision, in part, denied service connection for arthritis of the neck. The March 2008 rating decision, in part, denied service connection for arthritis of the neck, to include as secondary to service-connected temporomandibular articulation. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The Board denied the claim for service connection for arthritis of the neck, to include as secondary to service- connected temporomandibular articulation in a July 2012 decision. The Veteran thereupon appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In March 2013, the Court issued an Order granting a Joint Motion for Remand (JMR) by the parties, vacating the decision as to the issue of service connection for arthritis of the neck and remanding the matter to Board for further action. The appeal as to the claim for neck arthritis as secondary to service-connected temporomandibular articulation was dismissed. 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 Further development is required for compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In the JMR, the parties set forth that they agree that the Board inappropriately substituted its own opinion in discounting a July 2008 opinion of a VA treating physician. See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). In July 2012, the Board found that the opinion was less probative than a VA opinion provided in a September 2008 VA examination report because the physician who authored the July 2008 report did not provide a rationale as to why there was no radiographic evidence of osteoarthritis in the in- service July 2000 X-ray report, and because there was no discussion of the July 2000 general VA examination which demonstrated no bony abnormality of the cervical spine. The parties agreed that the Board's reliance on the fact that the physician did not discuss the July 2000 VA examination findings was erroneous. It did not explain why the July 2000 examination findings were relevant, given that the July 2008 VA physician opined that degenerative disc disease may be present in its early stages. Since it did not question the competence or credibility of the July 2008 VA physician, the decision to afford less probative weight to his opinion was not supported with an adequate reasons and bases. The parties noted that, on remand, the Board may seek any other evidence it feels necessary. The Board finds that, under the circumstances, an additional VA examination should be obtained so that a detailed medical opinion may be obtained considering all of the relevant evidence in this matter. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC must provide the Veteran a VA examination by a physician with sufficient expertise to determine the etiology of the Veteran's neck or cervical spine disability to include arthritis. The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be provided to the physician. The physician should be requested to review the claims folders and any pertinent records in Virtual VA that are not in the claims folders and provide an addendum in which he or she responds in the affirmative or the negative to the following question: With respect to each neck or cervical spine disability to include arthritis found to be present during the pendency of the claim, the physician should provide an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service. The physician should comment on the aforementioned July 2000, July 2008 and September 2008 VA examination reports. The physician should set forth a complete rationale for all opinions expressed and conclusions reached. 2. The RO or the AMC must ensure that the provided opinions are from a physician and should also undertake any other development it determines to be warranted. 3. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted 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 A. PAPPAS 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).