Citation Nr: 1331440 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 07-14 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to a 10 percent rating for multiple noncompensable disabilities under 38 C.F.R. § 3.324 (2012). 3. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to July 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In August 2010, the Board rendered decisions on other matters which had been appealed, and remanded the issues currently on appeal, for further development. 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 has appealed the denials of service connection for a cervical spine disorder, a 10 percent rating for multiple noncompensable disabilities under 38 C.F.R. § 3.324 (2012), and a TDIU. In August 2010, the Board remanded the Veteran's claims for further development, including a VA examination, the results of which could favorably impact one or more of his claims. The Veteran was scheduled for such VA examination at the VA Medical Center in Denver in September 2010. However, the examination was cancelled, with a notation that the Veteran had withdrawn his claim. A September 2010 letter from the Veteran reports that he has no transportation and has to get rides to VA in the city (by this he meant Denver, as he lives in Ft. Collins), and that he wanted to withdraw his claim for increase in his service-connected disability for health reasons. An August 2010 VA medical record notes that he had transportation problems and needed to be seen in Ft. Collins if possible. The Veteran's representative argued in April 2011 that the Veteran's September 2010 letter is ambiguous and cannot be accurately interpreted. The representative thereby asserted that none of the Veteran's appealed claims had been withdrawn. The representative noted that no VA examination was provided, which was required pursuant to the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Based on the facts of the case, the Board believes that further efforts at development are in order, specifically to include affording the Veteran the opportunity of VA examinations VA Medical Center in Ft. Collins. Additional development required by the August 2010 remand must also be completed, as directed below. Id. Accordingly, the case is REMANDED for the following action: 1. Ensure compliance with applicable provisions of the VCAA. 38 U.S.C.A. § 5103, 5103A (West 2002 and Supp. 2009); 38 C.F.R. § 3.159 (2012). In particular, the Veteran should specifically be informed of the changes to 38 C.F.R. § 3.310, regarding secondary aggravation, effectuated as of October 10, 2006. See 71 Fed. Reg. 52744 (2006). He should be informed that in cases where secondary service connection is found based on aggravation, the rating activity will determine the baseline and current levels of severity under the rating schedule; and the rating is to be based on the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. He should be advised that VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the non-service-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the non-service-connected disease or injury. 2. All pertinent records of VA medical treatment, not already on file, which were compiled at VA facilities since August 2010 should be obtained. 3. Thereafter, the Veteran should be afforded a VA medical examination at the Ft. Collins VA Medical Center to ascertain the nature and etiology of his claimed cervical spine disorder, to include the question of aggravation of his cervical spine disorder by service-connected disabilities involving bilateral brachial plexus compression. The examiner should obtain a complete medical history, and conduct a clinical examination and any diagnostic testing deemed necessary. The claims file and any relevant electronic records must be furnished to the VA examiner, for review for the examination. Following a review of the relevant medical evidence in the record, clinical evaluation, and any tests deemed necessary, the VA examiner must address the following, providing a rationale for each opinion offered: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran suffers from any cervical spine disorder that originated during his period of military service or is attributable to any incident or activities in service, or that any arthritic process of his cervical spine was manifested to a disabling degree within the one-year period immediately following his service discharge in July 1969? (b) Is it at least as likely as not (50 percent or greater probability) that any existing cervical spine disorder was caused or aggravated by his service-connected brachial plexus compressions affecting the upper extremities? If it is determined that the claimed disorder was worsened by service-connected disability, to the extent feasible, the examiner should assess the approximate baseline disability prior to aggravation. (c) The examiner is further advised that "aggravation" is defined as a worsening of the underlying disability beyond its natural progression, as opposed to acute or temporary exacerbation. (d) The examiner is also requested to provide a rationale for any opinion expressed. If a conclusion cannot be reached without resort to speculation, the examiner must provide a complete explanation why this is so. 4. Thereafter, the RO/AMC should readjudicate the Veteran's claim for direct and secondary service connection for a cervical spine disorder. The RO should also address entitlement to a 10 percent rating under 38 C.F.R. § 3.324 based on multiple, noncompensable service-connected disabilities, and TDIU entitlement. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and a reasonable period in which to respond, 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). _________________________________________________ DAN SCHECHTER 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).