Citation Nr: 1332392 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 08-05 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of cervical spine C6-C7 concentric disc bulging as a result of VA medical treatment involving cervical spine surgery in August 1996. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability of a left ear disorder as a result of VA medical treatment involving cervical spine surgery in August 1996. REPRESENTATION Appellant represented by: Kathy Lieberman, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran had active service from June 1974 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran testified in April 2012 before the undersigned Veterans Law Judge at videoconference hearing. At that hearing the Veteran clarified that although he had requested a hearing before a Decision Review Officer (DRO), the Board hearing satisfied his hearing request. Cf. Bowen v. Shinseki, 25 Vet. App. 250, 255 (2012). A copy of the transcript from that hearing is associated with the claims file. A July 2012 Board decision denied service connection for the Veteran's claims for benefits under the provisions of38 U.S.C.A. § 1151, as captioned above. The Veteran appealed the Board's July 2012 decision to the United States Court of Appeals for Veterans Claims (Court), which in a February 2013 order, granted the parties' joint motion for remand, vacating the Board's July 2012 decision and remanding the case for compliance with the terms of the joint motion. A letter was sent to the Veteran and his representative on March 14, 2013, in which he was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's consideration of the Joint Motion. A request for a 90 day extension received in June 2013 was granted; in September 2013, additional argument and evidence was received. The appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a) (2) (West 2002). The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND In the February 2013 Joint Motion, the parties agreed that VA had not satisfied its duty to assist the Veteran. Specifically, the parties noted that although the July 2010 VA spine examiner had referenced magnetic resonance imaging tests (MRIs) completed in February 2008 and December 2009, the reports of those MRIs were not associated with the record. The parties also found that the opinions provided by the July 2010 VA spine and audiology examiners with respect to the Veteran's claims for benefits under 38 U.S.C.A. § 1151 were inadequate as they lacked a "reasoned medical explanation" for the conclusions stated in the opinions. As such, the Board finds that remand is required so that these deficiencies in VA's duty to assist the Veteran can be resolved. Accordingly, the appeal is REMANDED for the following actions: (The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain, physically or electronically, all outstanding VA treatment records from relating to treatment of the Veteran's spine disability, including but not limited to the February 25, 2008, and December 3, 2009, MRIs referenced by the July 2010 VA spine examiner. Document all attempts to secure this evidence in the claims file. If the records cannot be obtained, the RO should notify the Veteran as to the unavailable records, and explain the efforts taken to obtain them. Give the Veteran an opportunity to respond. 2. Forward the Veteran's claims file to the VA examiner who conducted the July 2010 VA spine examination, or if unavailable, a suitable replacement. The Veteran need not be physically examined unless the examiner determines that an examination is necessary. Ask that he or she review the claims file and provide an opinion as to whether it is at least as likely as not that the Veteran has additional disability of the cervical spine that is proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of VA in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable, as a result of surgery in 1996 at a VA facility. All findings and conclusions should be set forth in a legible report; the opinion should be supported by a reasoned medical explanation citing to clinical findings documented in the record as appropriate. The examiner's attention is directed to the February 2013 Joint Motion, a copy of which is associated with the claims file, as additional explanation of why the previously offered opinion was inadequate. 3. Forward the Veteran's claims file to the VA examiner who conducted the July 2010 VA audiology examination, or if unavailable, a suitable replacement. The Veteran need not be physically examined unless the examiner determines that an examination is necessary. Ask that he or she review the claims file and provide an opinion as to whether it is at least as likely as not that the Veteran has a hearing loss disability that is proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of VA in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable, as a result of surgery in 1996 at a VA facility. All findings and conclusions should be set forth in a legible report; the opinion should be supported by a reasoned medical explanation citing to clinical findings documented in the record as appropriate. The examiner's attention is directed to the February 2013 Joint Motion, a copy of which is associated with the claims file, as additional explanation of why the previously offered opinion was inadequate. 4. After undertaking the development above, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his attorney, and an appropriate period of time in which to respond. Then, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). _________________________________________________ STEVEN D. REISS 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) (2013).