Citation Nr: 1328554 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 08-16 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a neck disorder, to include as secondary to the Veteran's service-connected low back disability. 2. Entitlement to service connection for a disorder manifested by syncope, claimed as episodes of low blood pressure and dizziness, to include as secondary to a neck disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2013, the Board received a statement from the Veteran in which he expressed a desire for a rating higher than 10 percent based on the "emotional and social" afflictions resulting from his back and neck injuries. It is unclear whether the Veteran's intent was to disagree with the initial rating assigned for the low back disability in the February 2013 rating decision or to file a claim of entitlement to service connection for a psychiatric disorder, as secondary to low back and neck disorders. The RO should clarify whether the statement was intended as a notice of disagreement with the February 2013 rating decision with respect to the initial rating assigned for the lumbar spine disability or as a new claim of entitlement to service connection. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND With respect to the claim of service connection for a neck disorder, the claim must be remanded to ensure an adequate VA examination in compliance with the Board's September 2012 Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Although an opinion was obtained in November 2012 as to whether the neck disorder was secondary to the service-connected low back disability, the examiner's opinion did not adequately address whether the Veteran's service-connected low back disability aggravated his neck disorder. See Allen v. Brown, 7 Vet. App. 439, 449-50 (1995) (finding that a VA nexus opinion stating that a claimed disorder is not "related to" a service-connected disability or that a service-connected disability was not an "etiological factor" in the onset of a claimed disorder does not answer the question of aggravation). Accordingly, a supplemental opinion must be obtained. The Board finds the record is also inadequate to adjudicate the issue of service connection for a disorder manifested by syncope, to include as secondary to the neck disorder. Although an opinion was obtained in April 2013, as directed by the Board in its September 2012 remand, the examiner's opinion only addresses whether there is a relationship between hypotension and the neck disorder. It is unclear whether the examiner was using the term "hypotension" as a word of art or as a generic reference to the reported episodes of low blood pressure. Based on that ambiguity, the absence of a definitive diagnosis of a disorder manifested by syncope, to include hypotension, and the inadequate discussion of whether the reported disorder has been aggravated by the neck disorder, an examination should be provided and supplemental opinion obtained. VA must also take this opportunity to obtain private or VA treatment records not currently in the evidence of record. Accordingly, the case is remanded for the following action: 1. Contact the Veteran and request that he submit or identify relevant evidence in support of his claims being remanded herein that has not already been associated with the claims file. Specifically, the RO must request the Veteran to submit or identify all VA and non-VA medical providers who have treated him for a neck disorder or a syncopal disorder. Obtain copies of any identified treatment records that are not already in the claims file. If unable to secure reported records after making reasonable efforts, notify the Veteran and (a) identify the information VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain that information; (c) describe any further action to be taken by VA with respect to the claims; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, an addendum from the November 2012 VA examiner must be obtained. If the November 2012 VA examiner is unable to provide the addendum or is not available, an opinion from an appropriate medical professional must be obtained. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Following a review of the evidence of record, and with consideration of the Veteran's statements and any lay statements of record, the examiner must state whether any degree of any of the Veteran's neck disorder is aggravated by the service-connected low back disability. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. Afford the Veteran a VA examination to ascertain the presence of any current disorder manifested by syncope, claimed as low blood pressure and dizziness, and, if present. All indicated studies must be performed, and all findings must be reported in detail. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. For any diagnosed disorder manifested by syncope, claimed as low blood pressure and dizziness, the examiner must state whether it is related to or began during the Veteran's active duty service. Additionally, the examiner must provide an opinion as to whether any diagnosed disorder manifested by syncope, claimed as low blood pressure and dizziness, is due to or aggravated by a neck disorder. In rendering this opinion, the examiner must specifically acknowledge the Veteran's histories that the syncopal episodes occur with flare-ups of his neck disorder and the notation in the March 2010 VA treatment record that the neck disorder was "significant for hypotension with certain movements of the neck." The examiner must identify specific evidence, either clinical or lay evidence, in the claims file to support the conclusion reached. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. Notify the Veteran that it is his responsibility to report for any examination scheduled and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to the last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 5. After the requested medical opinions have been provided, review the medical opinions to ensure that they are in complete compliance with the directives of this remand. A medical opinion must be returned to the examiner if it is deficient in any manner, and the RO must implement corrective procedures at once. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).