Citation Nr: 1329371 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 09-19 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hip disability. 2. Entitlement to service connection for cervical spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to March 1981, and from June 2004 to August 2005. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Montgomery, Alabama Regional Office (RO) of the United States Department of Veterans Affairs (VA). In an October 2007 rating decision the RO denied service connection for bilateral hip disability. In a September 2011 rating decision the RO denied service connection for cervical spine disability. In an April 2011 letter the Veteran's spouse expressed that the Veteran's service-connected PTSD should be reevaluated. The RO most recently evaluated the Veteran's PTSD in a July 2010 rating decision. The Veteran has not requested an increased disability rating for PTSD since then. If he desires to reopen a claim for an increased rating, he should do so at the RO. In February 2012 the Veteran submitted a request to reopen a previously denied claim for service connection for sleep apnea. Thus, the issue of reopening of a claim for service connection for sleep apnea thus has been raised. The issue an increased rating for PTSD possibly has been raised by the record. Those issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 Board will remand for the development of additional evidence the claims for service connection for bilateral hip disability and cervical spine disability. The Veteran contends that he has bilateral hip disability that began during his 2004 to 2005 period of active service. Effective from the Veteran's 2005 separation from service the RO established service connection for lumbar spine disability that was treated in service. Some service treatment records reflect reports of both low back pain and hip pain. A VA medical examination performed in October 2007 addressed the condition of the Veteran's lumbar spine but did not address the condition of his hips. The Veteran has reported that since service he continues to have pain in his low back and in his hips. The Board is remanding the issue for a VA examination to determine whether the Veteran has any current disorder affecting either or both hips, and, if so, to obtain opinion as to the likely etiology of such disorder. The Veteran contends that current cervical spine disability, including intervertebral disc disease, is related to neck injury during his 2004 to 2005 service period or is secondary to his service-connected lumbar spine disability. He has indicated that his chronic lumbar spine pain had its onset when he fell from a truck in service in 2004 and landed on his buttocks. He has asserted that in the same 2004 incident he struck his head and sustained injury to his neck. He contends that the 2004 neck injury led to his current cervical spine disorder. In the alternative, he contends that his lumbar spine disability has caused or aggravated his cervical spine disability. The Veteran's service treatment records show treatment for back pain. Those records include the Veteran's report of a history of back and neck pain. Post-service treatment records from 2009 forward show complaints of neck pain, and imaging has shown cervical spine disc disease. In the report of an April 2011 VA examination, the examiner opined against a likelihood that the Veteran's cervical spine disc disease is a result of his lumbar spine disability, noting that the service treatment records did not show treatment of neck injury. The examiner went on to state that the Veteran's cervical spine degenerative disc disease was "most likely related to [his] statement of unreported neck injury." The examiner's second statement appears somewhat confusing and contradictory in relation to her first statement. In September 2011 a private physician who treats the Veteran expressed the opinion that the injury during service that caused the Veteran's lumbar spine arthritis and disc disease also affected his cervical spine. The VA and private clinicians' statements regarding the etiology of current cervical spine disability leave considerable questions. The Board is remanding the issue to seek clarification by means of another examination with file review and opinion regarding the likely etiology of current cervical spine disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination to address the nature and likely etiology of any current disabilities of the left and right hips and the cervical spine. Provide the examiner the Veteran's claims file and any relevant information from his Virtual VA electronic claims file for review. Ask the examiner to review the record and examine the Veteran. Ask the examiner to provide a diagnosis for any disorders affecting either or both hips. For each current hip disorder, ask the examiner to provide an opinion as to whether it is at least as likely as not (at least a 50 percent likelihood) that the current disorder is related to events during service, including hip pain reported during service. Ask the examiner to provide opinion regarding the likely etiology of current cervical spine disability, including intervertebral disc disease. Specifically, ask the examiner respond to the following questions: (a) Is the Veteran's current cervical spine disability reasonably consistent with injury during service in 2004? (b) Is it least as likely as not (at least a 50 percent likelihood) that current cervical spine disability has continued from or is otherwise causally related to injury, disease, or other events during service? (c) Is it at least as likely as not that the Veteran's current cervical spine disability was proximately caused by his lumbar spine disability? (d) Is it at least as likely as not that the Veteran's cervical spine disability has been aggravated by his lumbar spine disability? Ask the examiner to explain the conclusions reached. 2. Thereafter review the expanded record and reconsider the remanded claims. If any of the remanded claims remains denied, issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, return the case to the Board for appellate review if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the matters that the Board has remanded. The Veteran has the right to submit additional evidence and argument on those matters. 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 D. LYON 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).