Citation Nr: 1330977 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-07 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a thoracic spine disability. (The issues of entitlement to service connection for an undiagnosed illness, to include chronic fatigue syndrome and fibromyalgia; tension headaches; a skin disorder; a right ankle disability; and bilateral knee and hip disabilities; as well as an increased rating for lumbosacral strain, are the subject of a separate decision.) REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from April 1990 to September 1991, with service in Southwest Asia (Persian Gulf). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which declined to reopen claims for entitlement to service connection for cervical and thoracic spine disabilities based on the absence of new and material evidence. In March 2011, the Veteran testified at a hearing in the Cleveland, Ohio RO before the undersigned. A transcript of the hearing has been associated with the Veteran's claims file. In December 2011, the Board reopened the Veteran's claims for entitlement to service connection for cervical and thoracic spine disabilities and remanded the claims for additional development. The claims again are before the Board. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. 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 Veteran contends that his current cervical and thoracic spine disabilities were incurred as a result of the same in-service incident wherein the vehicle in which he was riding was crossing rugged and uneven terrain. The Veteran suffered a low back disability as a result of this incident, for which he is separately service connected. In the alternative, the Veteran contends that his service-connected low back disability caused or aggravated his cervical and thoracic spine disabilities. The December 2011 Board remand referenced above ordered that the Veteran be afforded a VA examination. The resulting April 2012 VA examination report included diagnoses of a T11 compression fracture of the thoracic spine and degenerative disc disease of the cervical spine. The examiner discussed the absence of complaints of cervical or thoracic spine problems in the immediate aftermath of the Veteran's in-service injury to the low back. The examiner concluded that it was "less likely than not that the Veteran's current cervical and thoracic spine conditions are related to, caused by or aggravated by his service-connected lumbar spine complaints." The sole rationale for the opinion, however, was that there "was no documentation of the manifestation to a compensable degree of cervical or thoracic spine pathology separate from the Veteran's lumbosacral spine complaints within one year of the Veteran's separation from service." The Board does not find the expressed rationale sufficient on which to base a decision in this case. Specifically, the rationale does not discuss the possibility that the service-connected low back disability could have caused or aggravated the cervical and thoracic spine disabilities at some point after the one-year presumptive period following separation from service. In addition, the opinion fails to provide a definitive opinion with respect to attributing the Veteran's cervical and/or thoracic spine disabilities directly to service. As such, a remand is required to obtain a supplemental opinion from the April 2012 VA examiner, or other appropriate medical professional. In addition, the Veteran receives treatment at VA facilities. On remand updated VA treatment records should be obtained and associated with the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Updated treatment records from the VA Health Care Systems from May 2013 until the present should be requested and associated with the claims file. Any negative responses should be documented in the file and the Veteran must be provided with an opportunity to provide such medical records. 2. After the above development is completed, obtain a supplemental opinion from the examiner who conducted the April 2012 spine examination. If the examiner is not available, obtain an opinion from another appropriate medical professional. If the examiner determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims file must be made available to and reviewed by the examiner. The examiner is asked to provide an opinion regarding whether it is as least as likely as not (50 percent probability or more): (a) that any current cervical or thoracic spine disability, to include T11 compression fracture and cervical degenerative disc disease, was incurred in or otherwise related to the Veteran's military service; and (b) that any current cervical or thoracic spine disability was caused by the Veteran's service-connected lumbosacral strain. In that regard, the examiner/reviewer must consider whether such causation occurred at any time between the incurrence of the Veteran's low back disability and the present. (c) that any current cervical or thoracic spine disability was permanently aggravated by the Veteran's service-connected lumbosacral strain. In that regard, the examiner/reviewer must consider whether such aggravation occurred at any time between the incurrence of the Veteran's low back disability and the present. The examiner should provide a complete rationale for any opinion provided. If the examiner determines that an opinion cannot be made without resort to mere speculation, then it should be clear in the remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease or service-connected disability could possibly cause the claimed disorders, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. See Jones v. Shinseki, 23 Vet. App. 382 (2010) 3. After the above is complete, readjudicate the Veteran's claims. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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). _________________________________________________ H. SEESEL Acting 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).